Monday, August 11, 2014

Everything You Needed to Know about Family Law You Learned in Kindergarten

Well, okay, not really.   But that famous essay has one very important line in about sharing.   It says something about learn to share your toys.    Guess what happens ina  divorce/custody situation.   You have to share.   You must share.   If you don't you will be unpleasantly surprised at the outcome.

Yes we all learned about sharing at a young age.   But something about a break up turns people into 3 year olds.   All I hear is "mine, mine, mine."   You never hear "ours, let's figure out how to split it up."  

But the law says you must share.   In a way that is fair.   That is what equity means.  It's doesn't mean one person gets to keep all the goodies because they paid for them.   It doesn't mean one person gets to control the other parent's access to the kids just because of gender, time spent with the kids or some other things.

You know what judges hate to hear the most in custody cases?   "My child, my child, my child."   As one judge put it in one of my first cases "I wasn't there but I am pretty sure it took both of you to make this child."   I was dying of laughter at how bluntly the judge put it, but he had a point.   The child has two parents, who both have rights.   By saying "my child" you are denying the existence of the other parent.   Really not a good way to get custody.  One of the factors a judge uses in deciding custody is which parent is going to foster a relationship with the other parent.   If you are a "mine" parent, a judge is not going to think you will share with the other parent.  

The same with property.   This includes pensions.    Have I heard this a million times "But it's my money."   No it's not.   It's money you both planned on living on during retirement.   It's money that was saved rather than spent on family purposes like new furniture or a family vacation.   It's marital funds and must be shared.

The other one is "but I bought it with my money."   The court doesn't care who paid for something.   Your money, your spouse's money, its all marital funds.   That is funds earned during the marriage through the parties' efforts.   Who brought home the actual dollars is not relevant.   You bought it as a family, it gets shared when the family splits up.  

Now there is a rationale for all of this marital property/ both parents in the kids lives stuff.   For the kids, its pretty simple.   You are both the parents.   You are both responsible for how this little angel turns out.   In general, it is better if the kids have both parents in their lives.   So be prepared to not have the child all the time.   After all, you aren't living together, the kids can't be with both of you all the time.

For property, it is still pretty simple, if historical.   Many years ago, when women stayed home and took care of the kids and the men went out and earned the money, the husbands would then kick the wife to the curb.   She got the kids, of course, because that was her job.   But all she got was child support.   After all, insisted the husband, it was HIS money that paid for everything.   He bought the house, the car, paid the bills etc.  It was HIS.   Except he forgot who cleaned that house, made the meals, kept the kids out of his hair so he didn't have to take time off from work to take the kids to the doctors or run them around to their activities.   This became known as "non-monetary contributions to the marriage."   Just because she didn't earn a paycheck didn't mean the wife didn't work to make the family and marriage successful.   The court then took the concept and added in the utterly common sense idea of "sharing."   You shared the kids, you shared the property.  

This is not a tough concept when you look at the reasoning behind it.   The sooner you remember that you need to share, the easier your court case will go.   The hardest cases are where someone is resisting sharing, and the other party is also fighting for more than their fair share.   Listen to your attorney on what a fair settlement is and you will save a lot of time, aggravation and money in attorney's fees.   Because fighting to keep "mine, mine, mine" just because it is "yours, yours, yours" gets really expensive.