Alec Baldwin writes book on divorce and parental alienation

See article here

 

Judge not, lest ye be judged

Great article by Grant Brown in the Western Standard (Canada) on judges in family court…

In family courts across the land, judges hold effectively the same powers over separated parents as feudal lords held over their serfs, and it pleases them to exercise this power without much restraint.

How courts disenfranchise fathers

This is a must read article for fathers about to enter the Family Court (by Barbara Kay writing in Canada’s National Post).

Some highlights:

“…justice and judgments are two separate animals — is that although a judge must be knowledgeable in the law, he may also be a social idiot, with zero interest or ability in reading human behaviour, as well as blind to his own bias”

“In 90% of disputed custody cases mothers walk away with “primary care” (in effect sole custody) of their children because, deservedly or not, judges feel sorry for them and find a technical or legal opening to issue the judgment they have already made in their hearts.”

“…judges who aren’t up to date on the facts of domestic violence, and so base rulings on myths and stereotypes; a “disconcerting proportion” of judges who don’t know the law they are supposed to be applying or don’t care to apply it when they do know; judges who ignore evidence, affidavits and expert testimony that favour the father; judges who defer “difficult” (i.e., mother-unfriendly) decisions until it is too late; judges swift to punish fathers for support payment lapses, but loath to impose consequences on mothers who flout access orders.”

Dividing community property - the A/B list

How do household items get divided in a divorce? Usually the big ticket items, like the house, car, and pensions can be valued and a fair settlement reached. For instance, the Kelly Blue Book price of a car can be used to derive a value and one party can pay the other party their half share.

Often, however, smaller household items are more difficult to separate - the three TVs, 2 sofas, 3 beds, 2 sets of cutlery etc. While it is possible for two parties to sit down and agree on a division, it can often be difficult to split possessions in the heated atmosphere of a divorce.

One way to ensure a fair division is the so-called A/B list. In this process, one party prepares two lists of items that he or she thinks may fairly divide the household assets. The other party is then free to choose either List A or List B. Parties are then free to exchange items on their respective list by mutual agreement.

Notice that this system means the list preparer will be unlikely to put all the “good stuff” on one list because if the list is unbalanced the list selector will choose that list. Thus the division is likely to be fairly even.

In my case, I asked for an A/B division and the judge ordered it. My ex then failed to prepare the list, was re-ordered to do so by the judge, prepared a list and then withdrew the list before trial. After a five hour trial, my lawyer suggested dropping the list all together because the judge was threatening to extend the trial into another day (perhaps postponing the divorce for another six months).  I agreed in order to finalize the divorce on the day (and end extortionate temporary support payments) but received no household items (other than those in my possession that I had managed to throw in my car when I moved out.

I think this illustrates the dynamic nature of divorce proceedings and how a lengthy (and thus costly) legal process can sometimes trump other considerations (such as the right to half your household property).

Leaving Las Vegas: Relocation or Move-Away Issues

Can a custodial parent leave the state of Nevada after divorce?

In theory, the answer is “not without the consent of the noncustodial parent or permission of the court”. In reality, the court rarely denies permission.

The relevant statute is:

NRS 125C.200  Consent required from noncustodial parent to remove child from State; permission from court; change of custody.  If custody has been established and the custodial parent intends to move his residence to a place outside of this State and to take the child with him, he must, as soon as possible and before the planned move, attempt to obtain the written consent of the noncustodial parent to move the child from this State. If the noncustodial parent refuses to give that consent, the custodial parent shall, before he leaves this State with the child, petition the court for permission to move the child. The failure of a parent to comply with the provisions of this section may be considered as a factor if a change of custody is requested by the noncustodial parent.

Courts in Nevada claim to rely on the “Schwartz factors” outlined in a 1991 Nevada Supreme Court case:

1. the extent to which the move is likely to improve the quality of life for both the children and the custodial parent;
2. whether the custodial parent’s motives are honorable, and not designed to frustrate or defeat visitation rights accorded to the non-custodial parent;
3. whether, if permission to remove is granted, the custodial parent will comply with any substitute visitation orders issued by the court;
4. whether the non-custodian’s motives are honorable in resisting the motion for permission to remove, or to what extent, if any, the opposition is intended to secure a financial advantage in the form of ongoing support obligations or otherwise;
5. whether, if removal is allowed, there will be a realistic opportunity for the non-custodial parent to maintain a visitation schedule that will adequately foster and preserve the parental relationship with the non-custodial parent.

The court also listed six sub-factors for deciding factor (1) “the extent to which the move is likely to improve the quality of life for both the children and the custodial parent.” These are:

1. whether positive family care and support, including that of the extended family, will be enhanced;
2. whether housing and environmental living conditions will be improved;
3. whether educational advantages for the children will result;
4. whether the custodial parent’s employment and income will improve;
5. whether special needs of a child, medical or otherwise, will be better served; and
6. whether, in the child’s opinion, circumstances and relationships will be improved

Increasingly, though, the best interest of the child has become synonymous with the best interest of the custodial parent (usually the mother). In Trent v Trent (1995), the Nevada Supreme Court warned District Courts against using the relocation statute “as a means to chain custodial parents, most often women, to the state of Nevada”.  Since Trent, proposed moves have almost always been approved when the primary custodian is seeking to relocate and has a “good faith” reason (other than seeking to remove the non-custodial parent from the child’s life). McGuiness v McGuiness [1998] even goes so far as to venture that alternate methods of maintaining a meaningful relationship include “telephone calls, email messages, letters, and frequent visitation”.

The Case of Joint Custody

In cases of shared or joint physical custody the court has a little bit of a problem because the relocation would essentially sever any joint custody arrangements.   In Hayes v Gallacher (1999) the Nevada Supreme court holds that “even if a relocating parent is moving for illegitimate reasons or to an unreasonable location, that parent should retain primary custody and be allowed to relocate with the child if he or she shows that the relocation would be better for the child than a transfer of primary custody to the other parent.” So basically a full custody hearing is held to award primary custody to one of the parents. In this case, the father had a finding of domestic violence that created a presumption against custody even when the mother’s foreshadowed move to Japan was seen as unreasonable.

In the same decision, the court also advocated the American Law Institute’s view on primary physical custodty, namely that: “A parent who has been exercising primary residential responsibility for the child should be allowed to relocate with the child so long as it is for a legitimate purpose and to a location that is reasonable in light of the purpose. A relocation is for a legitimate purpose if:

• it is to be close to family or other support networks,
• for significant health reasons,
• to protect the safety of the child or another member of the child’s household,
• to pursue an employment or educational opportunity, or
• to be with one’s spouse [or spouse equivalent, if such is defined in Chapter 6] who is established, or who is pursuing an employment or educational opportunity, in another location.
• The relocating parent has the burden of proving the legitimacy of any other purpose.

A move with a legitimate purpose is reasonable unless its purpose is shown to be substantially achievable without moving, or by moving to a location that is substantially less disruptive of the other parent’s relationship to the child.”

Finally, in Potter v Potter (2005), the Supreme court held that a parent with joint physical custody is not eligible to relocate with a minor child but must first gain primary physical custody. The moving parent has the burden of establishing that it is in the child’s best interest to relocate outside of the state with the moving parent as the primary physical custodian.

No statistics are kept on the proportion of mothers obtaining primary physical custody in Nevada. One famous Massachusetts study found mothers received primary physical custody in 93% of cases (despite distorting the figures to claim men obtained custody in 70% of cases “when they wanted it”). 

Bottom line: If you are a non-custodial parent you have very little chance of fighting a relocation. If you are joint custodial parent you will need to fight like hell to prove its in your child’s best interests to stay in Nevada. 

How to not lose your house in a divorce

(See also Negative Equity and Divorce)

The court has the ability to grant “exclusive possession” of the marital residence to one of the parties while the divorce proceedings are still in progress. This means that the evicted party cannot enter the house without the permission of the occupant and can literally be arrested for trespassing. That also means you cannot enter and take any of your possessions from the house.

According to this article  in the Las Vegas Review Journal, fewer than 20% of motions for exclusive possession are denied. Meaning you have an 80%+ chance of being evicted from your own home should a motion for exclusive possession be filed against you. 

One of the judges in the article cites three grounds for allowing divorcing couples to stay in the marital home: 1) lack of financial resources to establish two separate households 2) the best interests of the children and 3) no history of domestic violence. 

So the judge has given clear guidance on how to stay in your home:

1) demonstrate a lack of resources to establish a second household (which is why lawyers tell you NOT to move out of the home - I guess this would even extend to staying temporarily at a family or friend’s home),  

2) demonstrate it is in the best interest of your kids to stay home (can be tough to prove - expect her to argue that the tension you both living under the same roof is psychologically damaging the children)

3) avoid a domestic violence charge (another tough one - there are numerous cases of false domestic violence charges AND judges erring on the side of caution even without physical evidence of any abuse - see this link for a wake up call).

(Of course, when the divorce is finalized you will need to give half of your equity in the house to your ex-spouse - this might entail selling the house or, if you are very lucky, you might be able to re-finance the house and buy out her equity - if you ever agree on what the equity is worth).

In my case, I had moved out of the house to escape constant verbal abuse and had rented a single room in a friend’s house. Not only did the judge award exclusive possession to my soon to be ex-wife but also ordered me to continue paying all mortgage and utility payments as well as child support. The judge also refused to order my ex to get a job - despite the fact that the children were teenagers and she had a teaching license. My ex ended up living in the house for almost 3 years rent free without any bills while collecting child support and taking up to 90% of my net income every month. Welcome to the “justice” system. (BTW, she also made it difficult for realtors to show the house to potential buyers - even when the court ordered that the house be placed on the market).

Motion to Show Cause

A motion to show cause (why you should not be held in contempt) is simply a claim by one party that the other party has violated the court’s orders and should be required to a give a reason why they shouldn’t be held in contempt (and penalized) by the court. Examples could include hiding assets, failing to provide documents, denying visitation, not paying child support or alimony, or violating a restraining order.

The court has wide powers to punish someone who disobeys its order, including financial penalties and jail time. The court usually gives someone a chance to remedy the behavior (such as paying child support arrears and attorney fees) before ordering jail time. Judge Pomrenze of the Clark County Family Court in Las Vegas Nevada is infamous for jailing a lawyer who argued with her (she refused to hear his motion without an affidavit of financial condition). Contempt extends to violating a judge’s orders both directly (i.e. inside) and indirectly (i.e. outside) the court.

The Nevada Revised Statues (NRS 22.100) indicate the maximum penalty for a contempt is $500 or 25 days in  jail. However, NRS 22.110 goes on to say “when the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he performs it”. Ouch!

Motions for contempt in divorce cases are often brought against fathers for failing to pay child support or violating protection orders. In my experience, the court is very reluctant to find a mother in contempt for violating a visitation order (the most common complaint of fathers).

Preference Theory

I just finished reading a fascinating article on gender inequality by Catherine Hakim of the London School of Economics. The bottom line is that:

“Preference theory predicts that men will retain their dominance in the labor market, politics, and other competitive activities, because only a minority of women are prepared to prioritize their jobs (or other competitive activities) in the same way as men. In the long run, it is work-centered people who are most likely to become high achievers in demanding occupations (Hakim 2006).”

It seems that sociology is picking up on Warren Farrell’s message on why men earn more.

Hakim goes on to write: “It is time to accept that the equal opportunities revolution has served its purpose, and the feminist goal of 50/50 sex ratios in all occupations and jobs is unrealistic, given the diversity of tastes, values, and preferences among men and women. Social engineering attempts to impose identical outcomes and eliminate occupational segregation completely cannot succeed, being based on selective research evidence and incorrect assumptions.”

Powerless Fathers

Glenn Sacks reports on the case of a UK judge who concludes that fathers are powerless against vengeful mothers (originally reported in the UK’s Daily Telegraph).

The man’s 14-year-old daughter, who cannot been identified, had been influenced by a “drip, drip, drip of venom” from his ex-wife, who wanted to deny him his paternal rights.

Lord Justice Ward said the case was bordering on the scandalous but the court was compelled to act in the interests of the child.

Because of her mother’s “viciously corrupting” influence, it would cause the teenager too much distress if she spent time with her father, he said.

In London’s Civil Appeal Court, Lord Justice Ward said: “The father complains bitterly, passionately, and with every justification, that the law is sterile, impotent and utterly useless.

”But the question is ‘what can this court do?’ The answer is nothing.”

This generated some sad tales and interesting perspectives on Sacks’ blog, including this one by Tim O’Brien:

You’re saying that it’s too hard and too traumatic to change custody for that kid. So you’re saying that the status quo — living with a mom who ONLY puts her own needs above her child — is somehow better?! In the short term, yes it’s incredibly difficult, but in the long term all you’re doing is putting off this kid dealing with her mother’s abuse until she’s 30.

Just because it’s hard doesn’t mean it’s wrong.

And also, had they upheld the law early on, the situation wouldn’t be as dire as it is. The reason these women interfere with custody is because THEY KNOW there will be no consequences, no risk.

and this disturbing tale by stillsober34:

The mother of my child made many false accusations and alleged that I was a drunken, doped up father, incapable of taking care of my child 7 years ago. With an ex-parte court appointment (that I was never aware of), she gained temporary sole physical custody that was to return to normal “visitation” after several “supervised visitation” visits and a drug assessment for both parents. I complied, paid the fees to do supervised visitation as ordered, but the ex simply refused to participate. I tried using the “self help” window available at the family court house, but it is somewhat useless. I had no money for a lawyer because of overwhelming child support payments and a low income. I did what I could and sent letters, and made lots of calls to try and talk to both the Ex, and my child, but the letters and calls were never returned. Six years later, I managed to make enough money to pay off the back child support arrears, amounting to about $6,000.00. The ex immediately took this money, hired another lawyer and had her new husband file a petition to terminate my parental rights (to adopt my child) for the reason that I haven’t tried to contact my child in the last twelve months. It didn’t occur to me to send the letters certified, so I have no proof. The judge dismissed the petition initially, but the ex and her attorney demanded a full trial. Now, after 11 months of therapists, evaluators, and court dates for trial pushed out 5 times, I still have the burden of proof to say I tried to contact my child, when all this time she was kept from me. I am now in debt for another $16,000.00 for all of this, and my now 12 year old daughter hates my guts because all she knows is what her mother has told her. I have a therapist interviewing everyone involved to try to prove my child was alienated, but I don’t seem to be getting anywhere. Even if I “win” and manage to keep my right to be a Father intact, I face the overwhelming task of regaining the love and trust of my child. I love my kid, but I wish that I had never procreated in the first place. My life has been one of poverty, pain and hell for 8 years now. People wonder why Fathers are angry? It is difficult to continue to fight the good fight and remember the reasons for it. How many Dads just give up the fight, knowing they can’t win?
Like it or not, the feminist machine is wrong. Parental Alienation is real. Look up “Malicious Mother Syndrome”, it reads like a resume for my ex wife. No feminist knows the real pain of continuous grieving for a lost child. I am not even allowed to tell my child the truth (provided I could even speak to her). There is no Patriarchy. It has been dead a long time, and just like Elvis, no matter how many times it is mentioned, it isn’t coming back to life. Welcome to the MATRIARCHY gentlemen. What now? How much pain can we take before justice is served?

Alimony in Nevada

Alimony (often known as spousal support or spousal maintenance) is alive and well in Nevada. Unlike other states, there is no statutory formula for calculating alimony in Nevada - meaning its all up to the discretion of the judge and represents a huge fee generating opportunity for lawyers.

There was an attempt to devise a alimony formula in 1997 (known as the Tonopah formula). The formula takes into account the marriage duration and lower earning spouse’s education, disability status, and age.  The calcuation can range from 0% to 50% of the difference in incomes (after deducting child support), increasing with a longer marriage, older spouse, more disability, and less education. In their wisdom, however, the Nevada Supreme Court has banned family court judges from using the formula to determine alimony.

The result is a list of “factors” to be weighted. The factors vary from case to case and even the same factors have been given more or less weight in different cases. Thus, the judge must weigh each of the relevant factors in determining an alimony award and duration.  These factors include:

• age and health of the weaker party (usually the wife)
• property/assets of the wife
• whether wife contributed to the development of the husband’s career
• husband’s income
• wife’s premarital job training
• wife’s job and income potential
• kids
• marriage duration

The wife can also be awarded “rehabilitative” alimony to enable her to train to re-enter the workforce. Alimony can also be awarded indefinitely (although this seems to be getting rarer).  Alimony is also taxable to the recipient and tax deductible by the payer (actually lowering your adjustable gross income).  

In my experience, much money can be saved by agreeing to use the Tonopah formula and moving on. Litigation over alimony is costly (to gather evidence on all the factors) and the outcome is extremely uncertain because the judge can rule in almost completely arbitrary manner (and doesn’t have to justify his or her decision). Unfortunately, many lawyers like to tell their clients they can get a much better deal than the formula (my ex was given a number almost double that of the formula and eventually received about 50% more at great cost to us both). My advice go with the formula or something close and get a stipulation (agreement) in writing filed with the court ASAP.

Personally, I believe that alimony is simply “child support for adults” and, except for a few extreme cases, has outlived its used-by date.