Trends in A Troubled Economy

Posted by Daniel Clement on November 26, 2008

As the economy continues to falter, there are reports of a couple of distinct trends in family law cases: many couples are putting off their divorces and, if the couples are going forward with their divorces, they doing so without legal representation.

NBC News is reporting that “more distressed couples are putting off divorce because the cost of splitting up is prohibitive in a time of stagnant salaries, plummeting home values and rising unemployment.”

In more prosperous times, the marital home was the largest asset to be distributed. When it was sold, the proceeds used to be enough to allow both parties to have adequate funds to finance their fresh start. “But the disastrous real-estate market is leaving many homeowners owing more on their mortgages than their properties are worth — turning what would normally be their biggest marital asset into a liability.”

Today, with housing prices so low, it’s again cheaper for couples to “work out your differences now,” said Clinton J. David, a lawyer specializing in complex business transactions in Dallas.

Instead of you and your soon-to-be ex-spouse fighting over how to divide up the profits from the sale (of a home), you could actually, unfortunately, end up fighting over who’s going to pay off the lender because the loan on the home is actually more than the value.

For those people who do want to divorce, more people are representing themselves in court, according to the Associated Press. Many pro se litigants represent themselves in court so as to avoid the cost of attorneys.

But, there are inherent risks in representing yourself in court.  Pro se litigants are unfamiliar with rules of procedure, the rules of evidence, and standards like the burden of proof.  As a result, cases may not be properly presented in court, with devastating consequences, like the loss of custody of children.

I am awaiting reports of a third trend – reports of increased filings for modifications of existing child support and maintenance awards. It will be interesting to see how the courts will handle request to reduce  support orders in view of the systemic meltdown of the economy, the loss of employment and the decline is stock portfolios and real estate values.
 

 

Law Enacted to Protect Military Parents

Posted by Daniel Clement on November 11, 2008

Today was Veteran’s Day. From my window on Fifth Avenue, it seemed like the biggest loudest parade in years. In view of this holiday designed to give recognition to those who served this country, it seems appropriate to note a new law which was enacted with little or no fanfare.

While protecting the countries’ interests, members of the military unselfishly make great sacrifices and put all aspects of their life on hold. The tragedy of war would be greatly compounded if permanent changes of custody of children were granted while a child's parent was serving the country and was deployed overseas. Recently, a law was enacted to prevent this unjust result.

As provided in the law's  memorandum:

This new bill prohibits a court from making a permanent change in an existing custody order when a custodial parent has been activated, deployed or temporarily assigned to military service and cannot care for his or her children for that reason. The bill protects the best interests of the child, who will clearly be affected by the absence of the parent, by allowing the court to make temporary modifications to the existing custody order while the military parent is so deployed.

While the Court is empowered to make temporary changes, if necessary, to protected the best interests of the children, when the military deployments ends, there is to be a hearing on the issue of the change in custody. 
 

This is a wise piece of legislation, designed to protect the interests of children and their military parents from opportunistic parents, seeking to permanently change custody only because the other parent deployed in the military.    While a temporary change in custody may be justified during a deployment, the deployment should not  be the sole basis for a permanent change in custody.