Child Support

After the parties agree to a parent-child contact schedule, or one is ordered by the court, the next thing to determine is the child support obligation. This undertaking is presided over by a special magistrate.  Each party is required to fill out and file a financial affidavit, a Form 813 in family court parlance.  This is a sworn document that lists all the parties’ incomes, debts, assets, bills and expenses. 

The income of the parties and the percentage of total overnights each has the child is put into a spreadsheet called the Child Support Guideline and out pops a figure.  The Guideline is available to anyone for downloading and can be found at the Office of Child Support’s website: http://dcf.vermont.gov/ocs/parents/guidelines_calculator. Other considerations involved in determining child support are work-related child care, health insurance costs paid on behalf of the child, extra-ordinary medical, educational or other costs, and additional dependents who you have a duty to support.

If the figure produced by the Guideline is agreeable then that becomes the Order.  However, either party can request that the Guideline amount be deviated from, either up or down.  Some reasons for such a request (not routinely granted, by the way) is that the other party is hiding income or that they are voluntarily under- or unemployed.  Or that one has extraordinary costs that warrant special consideration.  The burden is on the requesting party to persuade the court of this, naturally.  It isn’t sufficient to simply say the other parent is hiding money or that you have lots of bills.  The court doesn’t really care about your bills.  Its job is to watch out for the kids.  If you have run up more bills than you can handle, well, tough, basically.  However, if you are supporting your mother on an iron lung, well that might warrant special consideration.  

Subpoenaed records and/or testimony may support a party’s claims.  For example, in a hearing to determine if the other party’s income is being under-reported, one might show evidence of a checking account with unaccounted for funds moving around or credit cards being used excessively (and paid off); or showing the court that the amount of product being used by a self-employed individual indicates income greater than that being reported.  

A final point worth mentioning is that the court acknowledges that a person needs a certain amount of money to survive, a so-called self-support reserve, below which they will not be required to make do.  If you or the other party earn this amount and withstand a claim that you are voluntarily under- or unemployed, then it could be that there is no child support obligation owed.

Buttressing Your Family Law Action

The weakest ink is better than the strongest memory.  – Chinese Proverb

During the course of litigation, whether it is a family law divorce or parentage action or custody dispute or a personal injury action, I insist that my clients keep a journal and a calendar.   As things unfold, first outside of court and then inside, and weeks turn into months, it is imperative to capture your experiences in writing.  No matter how fresh and unforgettable things may seem at the moment, with the passage of time – and it could be a year or more before some cases get to trial, even the best memory fade and distort.  Add to this the anxiety of sitting in the witness stand testifying and you chance losing your grasp of the details of the who, what, when, where, how, and why of things and thus, needlessly, some of your credibility before the court. 

In the family law case, a calendar is also recommended to memorialize when exchanges did and did not occur, including no-shows, how often phone calls were and were not allowed to take place, and how many overnights you had.  Also noteworthy are trips to the doctor and dentist and attending parent-teacher conferences.  Note who took them and who was present.  Whether you are the custodial parent or not, be sure you are on top of your kids’ visits to these folks.  At least be on the phone with them, getting records and being up to date with every aspect of these all-important things if you want to impress the court with your involvement and your readiness to continue with or accept custody and/or generous visitation.

Journal entries should reflect the date and time of the event and who was present.  Preferably, phone numbers and addresses are included beside those who might have to testify.  Typical of such entries might be the content and tenor of snarky conversations with the (soon-to-be) ex.  Or the details of confrontations.  Also, print out Facebook and other media entries if they reflect events or comments the court should be made aware of.  On that note, don’t say anything in an email, text, phone call or Facebook entry that you don’t want read in open court.  Unfriend those who might not have your best interests at heart.  Contrariwise, keep channels open with mutual friends and acquaintances that will print out useful entries of the other party after you are unfriended by them.

Litigation can be nasty business.  Avail yourself of those things that can help your cause and minimize the opportunities you provide the other side to help theirs.

How much is my ex entitled to, anyway??

I hear this a lot from clients who earn the majority of the income in a relationship.  They are confounded and perplexed to learn how much property and/or spousal support their soon-to-be ex partners are entitled to.

“I’m the one who went out to work every day,” I often hear.  “She got to stay home with the kids! I paid for everything. Why is she getting half my pension?!” Or house equity. Or paycheck. Or business.  Or whatever.

Under Vermont law, all property (and debts) no matter through whom acquired or when acquired, is considered to be part of the marital estate, to be apportioned as the parties or the court sees fit. Marriage is a partnership, with tasks and chores presumably divvied up to the parties’ satisfaction.  If you weren’t happy for the past 20 years, then you should have gotten divorced long ago.  If you wait 20 years and then claim at trial that you feel that tasks were never fairly divided you have an uphill battle.  The court hears this self-serving argument all too often.

[As an aside, when my clients make the argument referenced above I am quick to point out that if they didn’t bear the kids should this mean they have no rights to them?  That they can never see them again? This would be the equally foolish logical corollary.]

Mind you, it could be that circumstances did keep you in the relationship longer than you would have liked; that your partner didn’t pull his or her weight.  Or that they squandered resources.  This isn’t uncommon.  But the presumption is that contributions were equal and the burden of proof is on the party making an argument to the contrary.

Under the law, the court takes into consideration the contributions of the respective parties to the marital estate as well as any wasting of assets, when called upon to decide who gets what.  Among the considerations are the contributions of the homemaker and possible opportunities foregone as a result of that position.  The person in the workforce usually sees their employability improve with the passage of time and thus their economic outlook.  Not all employers value the skills of the homemaker as much as they might.  Thus, the person staying home with the kids not only arguably contributes equally to the household’s maintenance and well-being, but they also suffer opportunity costs. The court’s task is to determine how to put the parties on an equal footing as they head out of the gate on separate paths. This often takes the shape of giving the homemaker some financial support (alimony and/or a larger share of the assets).

John Oliver on Civil Forfeiture, a must see

This is an excellent clip on civil forfeiture, where innocent people lose property related to unsubstantiated suspicion of drug distribution, with no charges ever arising. Billions of dollars of property, including cash, houses, cars, ATVs, etc. have been confiscated in this appalling manner. https://www.youtube.com/watch?v=3kEpZWGgJks&noredirect=1 

Breaking Up: Rights to Kids and Property When You’re Not Married

Couples that are not married and who go through a breakup face a unique challenge.  They often have to deal with two different courts to handle their two different issues: kids and property.

Children born by the mother during a marriage are considered under the law to be the lawful children of both partners.  This is true even if the father isn’t actually the biological parent. If the child is not his, it is his burden to prove, should he want to, that the child is not his. This is typically accomplished through DNA testing.

Conversely, children born to unmarried partners are considered under the law to be the children of only the mother unless certain steps are taken. Parents often mistakenly think that the birth certificate is determinative of paternity.  It is not. It proves nothing.  The burden of proving paternity remains with the father (absent an agreement and subsequent acknowledgement by the court).  On the other hand, a Voluntary Acknowledgment of Parentage signed by both parents is presumptive evidence of paternity and switches to the mother the burden of proving the dad is not the father.  Again, subsequent acknowledgement is needed by the court to make it official. 

That official step is called an Order of Paternity, the result of a paternity action in family court.

So what does this mean, practically speaking? It means that when an unmarried couple breaks up and no order of paternity is in place, whether or not a Voluntary Acknowledgment of Parentage has been signed, then the father technically has no rights to the children until such an order is established. Naturally, the mother can voluntarily allow contact (and should think long and hard about denying such contact if the father has been an active part of the children’s lives, as the court takes a very dim view on such unilateral and detrimental actions, whether or not there is an order of paternity in place, as such denied contact is not in any way in the best interest of the children, to say the least). Obviously, it is another matter if abuse is present.

Next, we will discuss the mechanics of establishing Dad’s rights to the kids in a paternity action.

What to do if you get stopped by the police

First of all: Be polite.  The officer is doing the job we pay them to do.  Usually, they do it politely and professionally.  Be nice to them and they will usually be nice to you.  The officer has a lot of discretion as his or her investigation unfolds, such as letting you go sooner rather than later, putting the cuffs on tightly or not, allowing you to go pee if you need to…  Also, if conditions require processing you, they often have the discretion to just issue you a flash citation (which just says that you must appear in court on a certain day) instead of taking you into custody, depending on the severity of the alleged crime.  They are also noting your behavior for the State in connection with a possible prosecution, and for the court.  The latter can have a direct effect on the conditions of your release, possible bail requirements, and, ultimately, the case’s final disposition.  Judges don’t like loudmouths that act like jerks when police are trying to do their job.

Besides, this is not the person to pitch your battle against.  The real fight, if there is to be one, will occur in court.  The officer in front of you is merely a minor cog in the wheel of justice.  Don’t waste your time or energy (or credibility) trying to convince them of anything.  If they are going to arrest you, insolence and threatening behavior is certainly not going to somehow win them over.  It will fall on deaf ears and merely harden their resolve.  

And don’t grovel.  Remember, their role is to serve us, and that includes you, even in these circumstances.  Treat them as the public servant they are.  Like someone you have hired to help keep your town safe.  Someone that works for you.  Be polite and patient.  Stay in control of yourself and the situation.

This doesn’t mean by any stretch of the imagination that you should consent to anything.  

As a defense attorney it is difficult to imagine any circumstances that warrant consenting to a request to search your vehicle or making admissions, or answering any but the most basic questions.  If you have been detained while in your car, politely provide the officer with your license, registration, and insurance card.  ALWAYS be able to put your hands on these documents quickly and easily. Otherwise, looking around for them will be perceived as fumbling behavior, possibly supportive of further investigation.  If circumstances require it or if you are at unease in any way, request that all further questions be referred to your attorney.  Write his or her number out and provide this to the officer.  This will stop them in their tracks and preserve the maximum amount of defenses available to you should you end up being arrested for something. 

Yes, this can feel awkward.  We usually feel compelled to answer their (well-rehearsed) questions, as we are taught from an early age to respond with answers to authority figures.  Get over that.  Subtly remind the officer that you are still in charge, asserting your constitutionally protected rights.  This immediately puts the officer on notice that you know your rights and that they should tread carefully; that you are not to be trifled with. Don’t answer questions about where you are going, where you are coming from.  None of that. Simply provide your name, an ID and, if appropriate, the car’s documents. 

In the next installment, we will continue this discussion…

Parent-Child Contact

Once a determination has been made regarding parental rights and responsibilities the court (or the parties) must then decide the parent-child contact (aka, visitation) schedule.  The legislature informs us that maximum contact between the parents and the child is in the best interest of the child.  This obviously assumes abuse is not an issue.  And visitation is every bit as enforceable as a person’s custody award.  The person with custody has no right to tell the other what the schedule is going to be. 

A typical visitation schedule, or benchmark, that is often used is one where the non-custodial parent gets the kids every other weekend, plus a mid-week visit or overnight depending on the distances involved, alternating major holidays, split school vacations and 2-3 weeks in the summer.  This is by no means what the court awards in every case.  But it is a sort of typical guideline.  Sometimes, the court can be persuaded to allow alternating weeks of visitation: One week at mom’s; one week at dad’s.  That is the exception, though, not the rule. Or giving the non-custodial parent three weekends per month; and/or weekends that go from Friday to Monday morning.  There are lots of possibilities. 

Sometimes the non-custodial parent wonders why they can’t have the kids every weekend since the other party has them all week.  Except in cases where very young children are involved, the court considers weekdays and nights to be filled with the hustle and bustle of school, work, homework, etc., and that weekends are down times to be enjoyed equally by each parent.

It is typical for the court or the parties to add the proviso “unless otherwise agreed to by the parties,” which means in practice you can do anything you both agree to, any schedule.  However, if push ever comes to shove, then what is written in the court order is what will be enforced. 

Other (minor) issues to iron out are drop off and pick up times and locations, as well as who drives which leg of the trip.  It is also sometimes a good idea to have a journal go back and forth with the (younger) kids so that assignments or doctor’s appointments or an update on the kids’ health can be relayed, especially if the parties aren’t always able to speak amicably with each other.

Once visitation is determined and the parties’ incomes are known, child support can be addressed.  That is the subject of our next blog.