by Jill H. Breslau

A few years ago, I heard the heart-wrenching story of a woman–I’ll call her “Julie”–whose same sex partner adopted a little girl from China.  Both women actively participated in the life of this child; both of them considered her their daughter.  But Julie didn’t think to seek formal adoption.

When the two women separated, Julie’s partner refused to allow her to see their daughter, and the court had no jurisdiction to compel visitation.  In fact, the custody issues in the case were heard in Juvenile Court rather than Family Court.  Because of the animosity between the couple, this little girl lost contact with a loving parent.

The acknowledgment of same sex marriage may avoid the sad situation that happened to “Julie.”  In general, a child born or adopted during a marriage is considered to be a child of both parents.  Thus, Julie and her partner’s little girl would be entitled to have contact with both of them, and to be supported by both of them, if their marriage failed.

It appears that change is coming.  But while the law is in flux, it is a good idea for same sex couples to be vigilant and to consider the consequences of a decision to marry . . . to relocate . . . and to have children.  While many issues can be resolved by agreement (before and after the marriage), some issues remain within the province of the law.  Obtaining a legal resolution can be financially challenging and personally disheartening.  Nobody wants to anticipate divorce; people tend to learn about it on as “as needed” basis.  But, especially in an area of the law that is uncertain, it is wise to plan for any eventuality.

A comment on yesterday’s post sent me to a nicely designed blog called Women for Fathers Rights.  It is for a “wife, sister, mother, friend or any other woman looking to help a man in your life with his child custody and fathers’ rights issues.”

The blog plans to cover custody arrangements, tips and techniques to assist your man with his battle in the courtroom, and even common questions and answers that arise from being the woman in their lives battling for their rights to be a dad.

Here’s a quote from the blog: “A child with their father in their lives is the best possible outcome of any divorce.”

One of the reviews on a Battlestar Galactica CD at Amazon.com is from a woman who says it ruined her marriage.

Her husband became obsessed with the television show, then went onto websites, Twitter, Skype, listening to podcasts, texting and chatting about the show.  Finally he went to a Battlestar Galactica convention in Texas and now lives with a woman he met on the website.  She says he forgot all about his wife, children, family, home and job.

They are now involved in a bitter divorce.  This can’t be good for his custody and visitation case.

Christopher Perry, at CNN.com writes about his painful conversation five years ago with his five and seven year old sons that he and mom were not going to live together any more.  The seven year old tells him “It’s going to be ok.”  The divorce, however, was less than cordial.

Perry tells of the tears, frustrations, laughter, joys, happiness and awe with his children as each Father’s Day ticks off the years.  At the third year, the youngest asks him when he is moving back.

Now after five years, he realizes that it really is going to be ok.

My most important client is not the diplomat who called from overseas for wire instructions so he could send me his retainer for a post divorce dispute.

My most important client is not the stock broker who made a million dollars last year and is looking at life time alimony and his soon to be ex-wife’s mounting legal fees that he may have to pay.

My most important client is not the wealthy businesswoman who brings her daughter to my office for a parenting plan and separation agreement.

Last night, my seven year old son looked up at me and said, “Dad, can you come to my school play tomorrow?”  I set all those urgent cases aside this morning and spent three otherwise billable hours waiting for my son to say his three lines.  Because he is my most important client.

The court has ruled that Joseph Reyes will be allowed to take his 3-year-old daughter, Ela, to church according to the Chicago Sun-Times.  Rebecca Reyes, who has full custody of the child in their divorce proceedings, said the father was breaching an agreement they made that Ela would be raised in the Jewish faith.

The court also ruled that the father would have Christmas and Easter holidays with the child and the mother would have the Jewish holidays.

But Reyes still faces contempt sanctions for taking his daughter to church in violation of a previous court order.

Jon Gosselin has filed a Complaint in Custody and for Child Support against Kate Gosselin.  Jon has said that Kate is spending too much time on Dancing with the Stars and that she is neglecting the kids.  The Complaint doesn’t mention that but says she is abusing the discretion she was given by the arbitrator to set the times when Jon can be with the children.  Jon is asking that custody of the children be changed to him and that the court review the child support awarded by the arbitrator.

Hector and Maxine Joy Sallaberry of Florida had been married for 17 years and had one son.   Hector owned a copy machine repair business.  Maxine had almost no income and Hector supported the family.  Family expenses were about $5,000 a month.

In their divorce, Maxine hired a forensic accountant who reviewed Hector’s business records and testified that he made $6,752 a month.  Hector countered that he could only bill about one hour a day on the average at $95 an hour, and that his income was $3,400 a month.

The trial judge found that Hector was voluntarily underemployed.  He imputed income to Hector for child support and alimony on the following basis.  He said Hector could bill 20 hours a week which would result in about $95,000 a year in revenues.  Then he subtracted $15,000 for expenses leaving about $80,000 in profits which matched what the accountant said Hector earned.

On appeal, the Florida appeals court reversed, saying that (1) the judge’s finding that Hector could bill 20 hours a week was speculation, not evidence; (2) the accountant failed to subtract business expenses from his number; and (3) the judge could not impute income solely on past ability to pay because that might not reflect current earning power.

Sallaberry v. Sallaberry, et al., No. 4D08-2124 (Florida District Court of Appeal, Fourth District, February 17, 2010)

It is fairly normal to have fantasies of revenge and vindication in a divorce.  But those are not necessarily helpful emotions for finding your way through the legal systems and protecting your assets.  They can lead you to make wrong decisions when you should have a cool head or paralysis if you let them morph into despair and dejection.

You may be bitter about the amount of alimony and child support you have to pay.  Many ex-husband’s complain that their ex’s are living better than them financially.  That is not to say that single mothers have it any better.

Anger and hurt are part of the grieving process in a divorce according to many therapists.  These emotions should not be denied.  But it is also common to give them more significance than they deserve.  One way to cope is to find a meaning or purpose in your life that is bigger than your divorce problems.

Time does eventually heal the wounds and the divorce recedes into the past as your new life becomes larger and more satisfying than the old.  But ex-spouses still talk about their divorces with a hint of vindication or gloat over the misfortunes of their ex’s.

The way to know when you are over it is when you no longer want revenge.  That’s when you look at your life and you are satisfied.  The best revenge is living well.

Postings on Facebook are turning up as Exhibit 1 in more and more custody battles.  Although custody is supposed to be about best interests of the children, parties in conflict are more often than not inclined to try to show the other is a bad parent.

If you post your thoughts on Facebook, you may be giving the other side a roadmap for your case.  Do you want your spouse and his or her counsel to know what you are thinking and what your strategy is?

If you make angry statements about your spouse, you may be stepping in wet concrete.  The other side can use these statements in court to attack your credibility if you say something different.  Or to show the judge what kind of person you are if the statements are unreasonable.

The solution is to keep this in mind.  The first thing your spouse’s attorney will do after signing the retainer, is print out all your Facebook posts to use against you at trial.