REPOST: Family Law Is Broken. Let's Fix It.

Atty. Michelle Crosby is named as a “Legal Rebel” by the American Bar Association Journal for her work in reducing the number of couples seeking divorce. In the following article from The Huffington Post, Atty. Crosby articulates why the business of divorce is broken and why family law attorneys must take action to disrupt divorce and make a big difference in the lives of every family in the world:

When the American Bar Association Journal named me a "Legal Rebel" earlier this year, their headline read, "Disrupting Divorce."

For many people, "Disrupting Divorce" might suggest my aim is to reduce the number of couples seeking divorce. A noble goal, for sure. But the reason this legal trade magazine used that term to describe me, a long-time family law professional, is that they know something that most divorcing couples don't: divorce is broken. Or more specifically, the business of divorce is broken. It no longer works for anyone. Not couples. Not children. Not attorneys. Not judges. Not court systems. Nobody. As a result, its "disruption" is inevitable.

I, like so many of my legal colleagues, are fed up. And you guessed it, we're not going to take it anymore. I'll explain how we're turning this frustration into action in a moment. But first, let me explain to those who have not experienced the divorce industry why divorce must change:

Image Source: fragolasswell.com

1.Misaligned incentives (or at least the appearance of them). Most family law attorneys are honest, well-intentioned professionals. But this does not change the fact that the more conflict, questions and paperwork they generate the more money they make. Let me be clear: I don't believe most attorneys are intentionally inflating bills. But even the appearance of such a situation hurts the chances of a peaceful solution. Let's stop litigating emotion. It only leads to disappointed clients, drained savings accounts, and, even worse, kids who end up caught in the middle.

2."Traditional" solutions in an untraditional world. According to Pew Research, less than half of kids live in a "traditional" family. Yet in many places, laws, courts and societal norms only provide "traditional" answers no matter how complex the puzzle. You can't really blame the court system, it's built to serve the masses. Divorcing couples -- even if working with an attorney -- must take ownership of their divorce and what their family's unique situation requires.

Image Source: sta-law.com

3.Asymmetrical information. Most families entering the divorce process have no idea what they're getting into. The courts do. Attorneys do. But since most of those who divorce will only divorce once, they have little understanding of how the process really works let alone how to shop for professional help. And since accurate data on the cost of divorce, settlement rates, etc. is normally not collected (for one reason, see #4) and certainly not conveniently available, it is nearly impossible to be an informed consumer when it comes to divorce.

4.Underfunded family courts. Most family law courts are drowning in red tape, unfunded mandates and over-flowing caseloads. Despite the rising costs inherent in points #1-3 above, funding simply has not kept up. The number of complicated cases continues to grow, but the resources to serve them do not.

5.We still think divorce is a legal issue. And to a degree, of course, it is. But is that what causes us the pain? Is it the legally-required paperwork that prevents people from having a calm, peaceful and thoughtful divorce? Nope. It's usually the emotional issues -- driven by Puppy Brain -- that wreaks havoc on our lives, our finances and our relationships. Until we change this mindset that divorce equals law (and therefore lawyers, big legal bills, fighting, courtrooms, and so on), we don't have a chance to change how divorce is done.

Image Source: familylawcooperative.com

This list is nowhere near comprehensive. There are so many more issues. So many, in fact, that a feature-length documentary, Divorce Corp., was produced to catalog them. Even if we disagree on the finer points or causes, nearly everyone who interfaces with the family law system understands it's not working.

So what are we going to do about it?

For years, I tried to work completely within the system. I tried running a compassionate solo practice. I joined a Collaborative Law group. I became a mediator. Each effort was successful in its own way. But it wasn't until I got further out of the system by starting a company, Wevorce, dedicated to turning every divorce amicable that I could see things clearly: change in the divorce industry has been too focused on the business of divorce and what we need is a movement.

A movement is defined as "a group of people working together to advance their shared political, social, or artistic ideas." Yes! The key words in our situation: "people working together" and "shared... social... ideas." Double yes!

Fortunately for all of us, this is happening. At organizations like ours and law practices around the country, professionals -- specifically lawyers -- are waking up to the fact that if they are not part of the solution, they are part of the problem. So they're becoming part of the solution.

They are becoming more transparent.

They are simplifying their pricing.

They are speaking out -- online and in legislatures.

They are joining together to learn and share.

They are disrupting divorce.

Thank you responsible divorce professionals for changing divorce for good. Your efforts have not gone unnoticed; it makes a big difference in the lives of every family that you help and in the world.

For those who have not experienced it first hand, divorce may seem like an unlikely starting place to change the world. But those of us who deal with divorce every day know differently: divorce touches so many families, we must not only disrupt it, we must fix it.

I'm in. How about you?

Michael Kelly is are renowned divorce attorney, who have handled cases involving prominent individuals. For more discussions about divorce and family law, follow this Twitter feed.

REPOST: How divorce can damage your health

Both a Hollywood A-lister and a regular Joe or Jane are vulnerable to the physical and emotional stresses that accompany divorce proceedings. This article from The Telegraph Online advises how managing your health can help you can cope with this difficult phase.

Image Source: telegraph.co.uk

Motivate yourself: it's important to keep active during divorce proceedings

When Desperate Housewives star Eva Longoria appeared on the US chatshow Dr Oz, she claimed she stopped eating during her divorce, causing dramatic weight loss and liver problems.

While viewers may have suspected a little celebrity exaggeration, the fact is that divorce crucially impacts on physical and mental health, both short- and long-term.

Short-term, the emotional stress of divorce is huge. Longoria's weight change is not unusual – Demi Moore's weight reportedly plummeted to six-and-a-half stone during her divorce from Ashton Kutcher. Conversely, comfort eating and drinking can result in weight gain.

Researchers at the University of Chicago also found that divorcees were 23 per cent more likely to experience sleep disturbance and mobility problems.

Short-term, the emotional stress of divorce is huge. Longoria's weight change is not unusual – Demi Moore's weight reportedly plummeted to six-and-a-half stone during her divorce from Ashton Kutcher. Conversely, comfort eating and drinking can result in weight gain.

Researchers at the University of Chicago also found that divorcees were 23 per cent more likely to experience sleep disturbance and mobility problems.

Long-term, the effects linger. Divorce has been linked with an increased risk of breast cancer, diabetes, anxiety disorders and depression, while studies at the University of Texas suggest it accelerates the biological processes leading to cardiovascular disease. There is such a thing as a broken heart.

It's vitally important to take care of your physical and mental health throughout the divorce process and after (these guidelines arguably also apply when any relationship problems occur, even if divorce is not on the cards).

· Keep eating regular amounts of healthy food, even if you have lost your appetite.

· Avoid misguided ways of coping with stress such as smoking, recreational drugs and overusing alcohol.

· Relax: listening to music, walking or meditation can help. If you suffer sleep disturbance, ask your GP for advice and, if necessary, take medication on a temporary basis.

· Don't rely on personal judgment of your physical and mental state; ask a friend or relative to tell you if you seem to be putting your health at risk.

· Alert your employer and HR department to your marriage breakdown and ask them to help you avoid added work stress.

· Take regular exercise; if motivation's lacking, join an exercise group or gym where the companionship can energise you.

· Relationship breakdown usually means less physical touch, itself necessary for health: get a regular massage or join a contact dance class.

· If you feel emotional that often means you need to express that emotion – allow yourself to do that.

· Make sure you have people to turn to and confide in.

· Get regular health checkups during the divorce process and for at least a year afterwards.

· Keep aware of any lasting emotional backlash, such as depression, which can occur even after the decree absolute, because it's then you are faced with the reality of divorce.

· Realise that getting extra help is not a sign of weakness but a sensible reaction to a traumatic life challenge.

Divorce is one of the most stressful periods undergone by adults. Take care of yourself and let legal experts like Michael Kelly guide you through the proceedings of a divorce in the event of one. Follow this Twitter account for news and insight about family law.

REPOST: Protect finances in later-in-life divorce

Managing finances in a “gray divorce” can be difficult. When you’re over 50, you have fewer years until retirement and limited options to recover from financial mistakes, making it highly important for you to focus on this area to secure a stable financial future. The article below provides tips to help you manage your assets and avoid financial carnage during this period:

Image Source: usatoday.com

The divorce rate is rising among Baby Boomers.

When you're over 50 and facing divorce from a long-term marriage, coming to a settlement agreement that will safeguard a comfortable financial future is complicated.

"Till death do us part" isn't the case for many Baby Boomers today. "Gray divorces" are occurring more than ever before — the rate for adults ages 50 and older doubled between 1990 and 2010, according to research from the National Center for Family and Marriage Research at Bowling Green University in Bowling Green, Ohio.

"There are no 'do-overs' after you agree to a settlement," says Vickie Adams, a certified financial planner and certified divorce finance analyst in San Pedro, Calif. "After 50, you'll have fewer years to recoup from financial errors, so it's essential to get this right."

Here are a few tips for protecting your finances during a later-in-life divorce.

Keep a cool head

Ralph Heffelman, founder and chief executive of Dallas-based International Capital Management Corp., suggests viewing divorce as a business deal. "That approach may seem cold to some, but it's an unfortunate reality during a divorce," he says. "The more a couple is willing to divide assets objectively, and not emotionally, the faster they can complete the process and move on."

Spencer Hill, a South Carolina-based financial adviser, is about to turn 50 and is in the midst of a divorce with his wife of 22 years. "I've noticed in my friends and clients, whenever they fought more it just cost more with lawyer time," he says. "My wife and I have actually discussed it to the point where we think we might be able to do it without even using attorneys."

Bring in a third party

While couples like Hill and his wife are able to mediate on their own, other couples may need an impartial third party to provide guidance. A financial adviser can be useful to "triage all assets and provide accurate valuation and liquidity for each item," says Heffelman. Then, a mediator or litigator can divide assets accordingly.

Couples pursuing divorce who choose litigation should give their attorney the authority to speak to their accountant, their estate attorney and their financial adviser, suggests Eve Helitzer, a matrimonial attorney at Davidoff Hutcher & Citron LLP in New York.

Analyze your shared and individual debt

"Hidden debt is a common nasty surprise among divorcing couples," says financial planner Ann Dowd, vice president of retirement and investing strategies at Fidelity Investments in Boston. It can be even worse if you live in a state with community property laws. "You'll be held responsible for half your spouse's debt, even if the debt isn't in your name," she says.

In non-community property states, you may also run into trouble if you and your spouse hold credit cards or joint loans, Dowd says. Obtaining a full credit report before filing for divorce can help ensure you don't have any nasty shocks during negotiations.

Analyze your assets and retirement benefits

Most assets will be considered marital assets, says Leslie Tayne, financial attorney with New York-based Tayne Law Group, P.C. "You may want to consider a lump sum payment to your spouse for less than what a payout would be to hold onto assets," she says. She also suggests transferring certain assets into a life estate or into a trust for other family members.

Hanging onto a shared house may not make financial sense, either. "Compared with a well-diversified retirement savings account, a home is more likely to have ongoing and unexpected expenses, and its future value isn't assured," says Dowd.

Adams says people often assume their divorce decree will protect their rights to the funds in a retirement account, but you'll need a separate order, usually known as a Qualified Domestic Relations Order, to cover the division of retirement benefits. This order allows money in a plan to be distributed to another owner without incurring normal transfer taxes and penalties.

Once the dust has settled, you'll also need to change beneficiaries on assets such as life insurance, investment accounts, bank accounts and more.

Think about children and grandchildren

Estate planning during a divorce may clash with existing estate plans that gift assets to trusts and to children and grandchildren. This not only affects the immediate generations, but may also affect your taxes.

"From an emotional side, grown children can play a critical role in the divorce with side-picking, particularly where there are assets and estate planning at stake," says Carl Soranno, chair of the family law practice at Brach Eichler in Roseland, N.J.

Both parties need to determine how the divorce will financially impact any children and try to minimize damage to existing estate plans as much as possible, particularly when it comes to inheritance. In addition, adult children who still receive financial support from their parents may need to curb expectations. It's more costly for two single retirees to maintain their individual lifestyles than it is for a married couple.

Hold onto health care

Older adults often deal with medical issues, health insurance and insurability problems, and these need to addressed as part of an entire financial picture. One or both of the spouses "may not be able to obtain viable health care insurance after being removed from the other spouse's plan," says Soranno.

A settlement needs to take into account any specific health issues to ensure adequate long-term care. Some states allow the insured spouse to extend coverage to the dependent spouse and, in some cases, it may be prudent to allow one spouse to continue to receive health care coverage. If this isn't a viable option, make sure to price out potential health insurance plans and factor the costs into the agreement.

How divorce can affect your Social Security

Even if you remarry after a divorce, your former spouse can receive benefits based on your Social Security record if your marriage lasted more than 10 years and if he or she is over 62 and unmarried, according to the Social Security Administration. The benefit amount is based on your former spouse's earnings versus the amount he or she would receive from your benefit.

After a divorce you'll want to focus on rebuilding your financial security. Evaluate your new financial situation and find new opportunities to save and invest to ensure a more comfortable future.

Attorney Michael Kelly is a certified California family law specialist who can help you avoid the stress and uncertainty of trial so you can focus more on things that truly matter. Should your case call for litigation, Attorney Kelly will go above and beyond to protect your rights and welfare and to achieve a fair and beneficial outcome. Subscribe to this Google+ page for more information about the different areas of family law.

REPOST: Halle Berry’s Child-Support Fight: Female Breadwinners Can’t Have It Both Ways

Separated since 2010, Halle Berry and Gabriel Aubry share custody of their 6-year-old daughter. According to recent reports, the actress is petitioning for a reduced monthly child-support payment on grounds that her estranged partner is a lazy man who refuses to get a job. But Cathy Young argues on TIME.com that providing for one’s family is not an essential part of masculinity. Read more of her thoughts below:

Nahla, Gabriel Aubry and Halle Berry at the Topanga Canyon Festival on May 24, 2009 in Topanga Canyon, California.

Image Source: time.com

We need to shed the notion that providing for one’s family is an essential part of masculinity

The latest celebrity tussle over child support has an unusual twist. The parent seeking a reduction in child-support payments is the mother, Oscar-winning actress Halle Berry. The parent collecting the checks is her ex-boyfriend, French-Canadian fashion model Gabriel Aubry, who shares custody of their 6-year-old daughter Nahla. The gossip website TMZ reports that Berry has petitioned the judge overseeing the couple’s custody arrangement to reduce the monthly child-support payment of $16,000 to just $3,000, alleging that Aubry is refusing to get a job. Is this what equality looks like? Sometimes, it is—though the reactions to this skirmish show that a double standard definitely persists when it comes to men “living off” women.

TMZ ran the story under the headline, “Halle Berry: GABRIEL AUBRY IS A BUM; I Want Child Support Slashed.” A piece on Gawker’s Defamer blog sarcastically complimented Aubry on finding a great gravy train and suggested that Berry could not be blamed for wanting to put a stop to it. When a Gawker commenter posted a crude remark questioning Aubry’s manhood and joking about “medical bills to reattach his penis,” blogger Jordan Sargent’s only response was, “Strong comment.”

Would a woman collecting a lot of child support from her wealthy ex be derided as a lazy bum? Certainly not. (She might be attacked as a greedy vixen, but such attacks would likely be seen as misogynist.) For all the feminism-inspired changes in cultural beliefs about what it means to be a woman or a man, the idea that providing for one’s family is an essential part of masculinity has endured. While 40% of mothers in the U.S. are now their family’s primary breadwinner—including nearly a quarter of married moms—nearly a third of Americans still agree it’s best for everyone when the man provides for his family. One person’s Mr. Mom is another’s Mr. Bum.

While men are somewhat more likely than women to hold traditional views on gender issues, there is evidence that in their personal preferences, women may actually be more wedded—as it were—to the male-breadwinner ideal. In a 1994 study based on U.S. survey data of single adults, men were almost as willing to marry “someone who earns much more” than them as “someone who earns much less.” For women, a higher-earning partner rated 6 points out of a maximum of 7, compared with 3.5 for a lower-earning one. Women were also much less willing than men to marry someone who did not have a steady job.
Have things changed in 20 years? Perhaps not, in this regard. In the latest Pew Research Center poll on marriage, one of the biggest gender gaps for singles is in how important people consider employment for a spouse or long-term partner: 78% of women regard having “a steady job” as “very important” in choosing a mate, while only 46% of men do. Sorry, Gabriel Aubry.

These preferences are largely related to family roles. It’s not that women are materialistic gold diggers; rather, most want the option to curtail or interrupt paid work for motherhood. But prejudice against men who aren’t good providers may paradoxically clash with ambitious women’s life plans.

Take one of the women interviewed for feminist journalist Peggy Orenstein’s 2000 book, Flux: Women on Sex, Work, Love, Kids and Life in a Half-Changed World. “Abbey,” a 26-year-old artist and comic-book sales rep planning a career in the industry, admitted to growing ambivalence about her art-director boyfriend Jeremy. While Jeremy was devoted, supportive of Abbey’s goals and willing to follow her when she had to move, she was put off by his lack of ambition and limited earning potential. Ultimately, Abbey confessed that she’d rather have the choice to stay home after having children—despite being virtually certain that she wouldn’t exercise that choice and being strongly attached to her identity as a professional woman. Yet marriage to a Jeremy may be the best choice for a woman who wants to balance career and family.

Generally, it’s conservatives like RedState.org blogger Erik Erikson who defend the male-breadwinner role as biological (not quite the case if you look at the animal kingdom). Yet when a man and woman are in financial conflict, many feminists will line up in apparent solidarity behind a woman who upholds the most stereotypical of attitudes about gender and providing.

During the O.J. Simpson trial in 1995, prosecutor Marcia Clark sought more child support from her estranged husband—who earned half her salary—because of trial-related child-care expenses. (Imagine the derision if a male attorney had done the same.) When Gordon Clark asked for temporary custody, a chorus of feminist voices rose to defend Clark as a strong woman under attack. Today feminist websites like Jezebel mock affluent men who want to pay less child support as cheap crybabies—but offer no comment on Halle Berry’s bid for child-support reduction.

To be sure, $16,000 a month for a 6-year-old who spends half her time with her dad may raise questions about appropriate levels of child support in cases involving wealthy parents—and about when child support becomes a subsidy for a parent who should be pulling his, or her, weight. But such questions should be raised across the board, without double standards. In his own accidental way, Aubry is a pioneer for gender equality.

Attorney Michael Kelly is a family lawyer who provides legal consultation and representation for clients involved in child custody battles. Read more stories on child support here.

REPOST: The Big Money Mistake Divorcing Women Make

Kerry Hannon of Forbes writes about the need for divorcing women to understand the ramifications that their divorce would have on their finances and take the steps necessary to secure themselves, especially when they separate nearing retirement.

Image source: ontariofamilylawblog.com

With our 22nd anniversary this week (on the Fourth of July), I’m happily betting that love will keep my husband, Cliff, and I together for many years to come. But for several of my girlfriends — who, like me, are over 50 — the past few years have been anything but happily ever after.

They’ve divorced, or are on the cusp, and things haven’t been pretty — lots of would’ve/could’ve/should’ves about splitting their shared assets. Probably the biggest mistake they’ve made in their divorce settlements: leaving money on the table from their ex’s retirement stash.

I’ll offer some advice on what they’re missing — and what other divorcing women should do to get the retirement funds they deserve — in a minute.

As you have probably heard, gray divorce is a thing. The National Center for Family & Marriage Research says the divorce rate among adults 50 and older doubled from 1990 to 2010. And in 2010, 11% of men and 15% of women age 65 to 75 were divorced, according to a new report from the U.S. Census Bureau. (In 1960, when I was born, just 2% of men and 2% of women that age were.)

The Bravo cable TV network just launched Untying the Knot, a weekly show where lawyer/mediator Vikki Ziegler helps divorcing couples divvy up their prized possessions. I don’t expect 401(k)s and IRAs to score much screen time, but they should.

Image source: gma-cpa.com

As couples consciously uncouple at older ages, retirement accounts are often significant assets. And, as un-glitzy as they may be, they’re probably worth far more to your future financial security than your memory-laden belongings.


But many people don’t realize it.

What Divorcing Couples Wish They Knew

A recent Securian Financial Group survey of 546 people who divorced after 10 years or more of marriage found that going into the divorce, 31% did not claim a share of their spouse’s retirement benefits and weren’t aware they could. One-fourth of those surveyed said that after the divorce they wish they’d have known more about how to correctly divide these benefits.

In general, any retirement assets qualifying as marital property can be divvied up in your divorce agreement. However, if a spouse enters the marriage with money already in his or her 401(k), those funds are considered separate property and aren’t included in the division of assets. (In some states, though, any increase in value during the marriage could be considered marital property.)

Most places — except a handful of community property states — use an equitable distribution approach to dividing marital property: Everything acquired during a marriage in either spouse’s name or in both spouses’ names is considered a marital asset subject to division in a settlement agreement, according to the National Endowment for Financial Education.

Who actually holds the title to property is irrelevant. Three exceptions are assets owned prior to marriage, gifts and inheritances (unless they become commingled in joint accounts).

You’ll want to work with an ace divorce attorney, of course, to hammer out your Qualified Domestic Relations Order (or QDRO) for your asset split. A QDRO is a legal document, issued by a state court or agency, theoretically to protect both of you from owing taxes when retirement funds are transferred from one to the other.

Image source: financialengines.com

6 Tips for Divorcing Women

Now to my advice for women getting a divorce or think they might. Here are six tips to help you get what you deserve for your future retirement:

1. If you haven’t divorced yet, hire a financial planner soon. This money pro can walk you through your various options regarding Social Security and retirement plan money you may be entitled to receive. This can be a huge help when trying to determine what’s rightfully yours and to help you steer through the tax laws. Look for one with the Certified Financial Planner designation.

One of my girlfriends also hired a forensic accountant to help her find where her spouse had hidden accounts. Think this sounds excessive? Don’t be naïve. The specialist turned out to be well worth it.

2. Don’t choose taking the house over retirement assets. All my divorced friends fought to hang on to their homes. That’s not too surprising; this mistake is pretty typical.

In the Securian survey, nearly two-thirds of respondents said their home was their most valuable asset as a couple at the time of divorce. In more than half of the divorces, one spouse kept it — either through mutual agreement or by buying out the other’s half.

But the best scenario, according to experts I’ve interviewed, is to sell the home and split the proceeds. The retirement savings stockpiled by your spouse may be substantial and likely to grow in the future. But a home is probably going cost you money to maintain and its future value is less predictable.

3. Don’t raid your ex’s retirement funds. Experts advise you roll over directly into an IRA any employer-sponsored retirement funds you receive in the settlement rather than cashing out the money.

By law, however, you’re allowed to withdraw money from your ex’s 401(k) or 403(b) plan one time without incurring the 10 percent early withdrawal tax penalty if you’re under age 59 ½. If you’re buried with legal fees, you may want to pull out a fraction of the retirement funds to pay for them.

But keep withdrawals to a minimum; you want the money in the retirement funds to continue growing tax-deferred until you truly need it down the road at retirement.

4. If your husband has a Roth IRA or Roth 401(k), go for that before his standard 401(k) or traditional IRA. With a 401(k) or traditional IRA, you’ll be taxed when you withdraw money in retirement. With a Roth IRA or Roth 401(k), however, the earnings won’t be taxed, since that plan was funded with after-tax dollars.

5. Negotiate hard for retirement assets over alimony. Alimony is taxable and it’s really a short-term plan.

6. Don’t pass up his Social Security benefit. If you’re 62 or older and were married for at least 10 years, you may be eligible to collect as much as half of your husband’s Social Security retirement or disability benefits, even if he has remarried. (If you remarry, though, you generally cannot collect Social Security benefits on your former spouse’s record unless your later marriage ends by death, divorce or annulment.)

You may also be able to receive only your ex’s Social Security benefits now and delay receiving your own until a later date, which is a great idea. Social Security benefits are increased by a certain percentage — 8% annually for those of us born after 1943 — if you delay your retirement beyond Full Retirement Age.

And for those of you who may still have a soft spot for your ex, the amount of Social Security benefits you get has no effect on the amount of benefits he or his current spouse may receive.

He doesn’t even have to know about it. Ka-Ching.

Michael Kelly is among the most seasoned divorce and family attorneys in the State of California. Visit this Facebook page for more updates on issues relating to divorce and family law.

REPOST: Leave child support legislation alone

Gregg Herman of the Wisconsin Law Journal voices his opinion on changes to family law that would reduce child support contributions.

Image source: taperklaw.com

The story told of a wealthy business man, Michael Eisenga, who thinks he is paying too much in child support. After losing his appeal, Eisenga v. Eisenga, 2013AP91 (filed Oct. 3), Eisenga apparently asked his legislator, Rep. Joel Kleefisch, R-Oconomowoc — to whom, of course, he had contributed money — to draft legislation that would lower his child support.

According to the article, based upon requests by Eisenga and his lawyer, Kleefisch introduced a bill that “would cap the amount of income subject to child support to $150,000 a year — and assets could not be used in the calculation.” The article noted that Eisenga had donated $3,500 to Kleefisch; $7,500 to his wife, Lt. Gov. Rebecca Kleefisch; and $15,000 to Gov. Scott Walker.

These so-called “constituent bills” are rather common in the family law field. They are introduced by legislators who want campaign contributions and don’t like to say “no” to anyone who gives them.

Image source: familydivorceonline.wordpress.com

But, they rarely go anywhere. In fact, many never even get a hearing. They are merely a mechanism for the legislator to placate a contributor. It offers a way to say “I’ll try,” instead of “no,” even though they know full well the effort will be fruitless.

Except once. Those of us with long memories will recall when a Dane County legislator introduced a seemingly innocuous bill requiring both parties, where there are children, to file with the court extensive medical history information about themselves and their siblings. The court, in turn, was to provide this information to the child’s physician. The confidentiality issue and logistical problems were, in and of themselves, mind-boggling.

Of course, no one complied and subsequent action by the State Bar Family Law Section caused the legislature to amend the statute so it applies only to those with sole custody. Even for those cases, the law is commonly ignored. The remnants of the law can be found as Wis. Stats. §767.41(7m). Prior to the amendment, of course, there was substantial confusion.

More commonly, it seems in every legislative session a bill is introduced to mandate equal placement in every case — even where the parties live many states away from each other.

Fortunately, few of those bills see the light of day and the family law section seems to have learned its lesson that they cannot be simply ignored. Last year, a representative of the section appeared at a hearing to explain why a bill was bad police and not necessary. It went nowhere.

Kleefisch’s bill has little prospect for success. Child support laws are driven by federal title IV-D regulations, which no state would risk violating due to the threat of losing federal aid.

Image source: child-support-laws-by-state.com

Still, the question is worth asking: Does Wisconsin law regarding child support for high income payers need to be changed?

Under current law, the court may, under the guidelines, reduce support for income between $84,000 per year and $150,000 per year, with a further reduction for income over $150,000. After that the court can deviate from the guidelines if the court finds that application of the guidelines would be unfair to either party or to the child.

In addition, courts may require a high-income payor to contribute to a trust for the benefit of child’s higher education, as long as the contribution is made from the parent’s income earned while the child was still eligible for child support. Kowalski v. Obst, 2003 WI App 218, 267 Wis. 2d 400, 671 N.W.2d 339.

After all, presumably in an intact marriage, parents put aside excess money for their children’s education. It only makes sense that a divorce court has the same power.

Certainly, there is a level at which it is ridiculous to pay child support. A colleague of mine calls it the “one-horse rule:” no child needs more than one horse to ride.

Yet, the amount varies based upon individual circumstances. The law allows the court the discretion about whether and where to cap support. That is the way it should be.

In short, if it’s not broke, don’t fix it. No matter how much money is contributed to a politician.

Having practiced family law since 1969, Michael Kelly has become one of the most seasoned family lawyers in the State of California.  Visit his practice's website for more updates.

REPOST: Divorce for Catholics?

Pope Francis has stated that the Catholic Church needs to reach out soundly to the divorced and civilly remarried. This generated speculations that he will rethink the Church’s orthodox practice of forbidding divorced or remarried people to receive the Holy Communion.

Image source: Boston Globe

FAILED MARRIAGES are a fact of modern life, yet the suffering that accompanies every divorce is compounded for Roman Catholics. Because the sacrament of matrimony, according to church doctrine, establishes a bond that is indissoluble, Catholics who have divorced and remarried are forbidden to receive communion at Mass.

That stricture has become, for many, a demeaning symbol of exclusion; it has driven many others away from the church. But the promise of Catholic reform under Pope Francis is so far-reaching that the church is poised to rethink its view of divorce — a view that has defined Catholicism for 500 years.

In modern times, church leaders, especially in the United States, have worked around the Vatican’s punitive doctrine by stretching the bounds of the annulment process, extending to average people what once was available mostly to royals. By searching out “impediments” that, after the fact, kept prior marriages from being “valid,” Catholics in subsequent marriages are restored to good standing, and welcomed at the communion rail. By declaring the earlier marriage null and void — it never happened — the principle of indissolubility is upheld.

Never mind that this usually involves gross insult to former spouses, distortions of marital history, and the de-legitimation of children. Annulment is divorce Catholic-style. However mercifully intended, the annulment process is corrupt and corrupting. It points to the drastic need for reform.

Many parishes now welcome “Divorced Catholics” groups, which offer mutual support, while quietly pressing for fuller church acceptance of divorced and remarried people. But priests and bishops have decried the policy, too. In 1993, some German bishops proposed that “the general rule” should take into account the “concrete circumstances” of twice-married couples, perhaps leaving room for a pastoral decision to readmit them to communion. Cardinal Joseph Ratzinger, then the Vatican’s doctrinal head, slapped the suggestion down. And that was that.

Then, this October, the German diocese of Freiburg issued guidelines for admitting the divorced and remarried to communion. The first marriage might be deemed as irrevocably failed, the second marriage as having been entered into seriously and with full commitment, and so on. Again, the Vatican doctrinal head said a strong no, and ordered the diocese to stop issuing the guidelines.

This time, the German bishops pushed back. Stuttgart Bishop Gebhard Fuerts said last month that the German bishops as a whole would take up the subject in a meeting next March. Munich Cardinal Reinhard Marx said that the bishops “cannot end the discussion.” Indeed, he said it would proceed “on a broad scale.”

Normally, the Vatican doctrinal office can be assumed to be speaking for the pope. But Cardinal Marx is one of Pope Francis’ Council of Eight — the pope’s hand-chosen, intimate advisers, who are specially tasked with keeping Rome connected with the lived experience of the faithful. Francis, while affirming the annulment procedure, has said that the church’s handling of the question of divorce and remarriage must be taken up at the synod — a representative meeting of bishops — that will take place next year. When asked about the divorced and remarried, Francis said, “This is a time of mercy.”

The synod bishops will surely affirm the principle that marriage is for life. But they will be looking for a way of doing so without ignoring the realities of people’s lives. For centuries, Roman Catholicism has defined itself against Protestants and the Orthodox by the absolute prohibition of divorce. (History buffs will recall that St. Thomas More, lord chancellor under Henry VIII, accepted beheading rather than approve his king’s second marriage.) Even more problematic, Jesus explicitly condemned divorce (“What God has joined together, let no one separate.” Matthew 19:6).

The church has already relativized the Lord’s commandment indirectly, by stretching the bounds of annulment. To do so directly, the church must adjust the way it reads scripture — accepting that while Jesus spoke in one cultural context, we live in another. So if the church does reform its practice on divorce, other questions will follow — and may be less difficult. That Jesus chose only males for his apostles, for instance, would not necessarily mean women are ineligible for priesthood now.

Principles are at stake in these debates, but last month, in his “apostolic exhortation,” Francis upheld the most basic one: “The Eucharist, although it is the fullness of sacramental life,” he said, “is not a prize for the perfect but a powerful medicine and nourishment for the weak. These convictions have pastoral consequences that we are called to consider with prudence and boldness . . . The church is not a tollhouse; it is the house of the Father, where there is a place for everyone, with all their problems.”

Best California Attorney award winner Michael Kelly has almost 40 years of experience practicing family law. Visit this website for more information on his work.