Custody - when simple words can confuse and cause problems

Or, the subtitle can also be "what a lawyer is actually good for when it comes to a separation agreement". Child custody - many people have heard of this concept, and many know what it means, but in my family law practice I often see that the concepts of "physical custody" versus "legal custody" are often misunderstood. This is with good reason, since the distinction is technical and most people think custody means 'where the kids live most of the time".

I've recently seen a trend with a few clients I've consulted with, where during a time when an amicable separation is being discussed one of the parents gives up custody, without necessarily knowing it. The scenario goes something like this: husband and wife decide to split, and one of them, say the husband, is going to move out, but since finances will be tight he is going to at least temporarily stay with a friend or rent a very small place. Since the new place might not be appropriate for primary physical custody, he says - you can of course have custody as long as I can still see the kids every other day and every other weekend and some overnights. Trying to save some money the two either buy a separation agreement form online or go to a document preparation company, and when filling in the blanks put down that wife has "sole custody". And by typing in two simple words and signing on the dotted line one of the parents effectively loses almost all parental rights regarding the child or children.

The concept of "sole custody" is much, much different than "physical custody". Sole or legal custody means that only one parent has the authority to make all of the major decisions in a child's life, such as where they will be schooled, what religion they will be brought up with, and major medical decisions. Sometimes sole custody is appropriate, for example in cases where two parents cannot get along or if one has shown poor judgment in acting as a parent, to name a few instances. But generally although the children may only live with one parent primarily, a joint legal custody scenario is preferred. It is after all, in the best interests of the child for them to have a father and a mother in their lives.

Once you voluntarily agree to relinquish these rights in New York, it is difficult to get them back. So, when your spouse asks you to sign a big stack of papers for starting your divorce or separation, read it very carefully and have a lawyer tell you what it means before you agree to something you'll regret.

(Most) Everybody needs a will

I don't really like to tell people what to do. Yes, I'm a lawyer and I get paid to give advice, but I think that is different than barking orders at people.

So for me to say "you must have a will", to me is kind of like a doctor telling a patient to lose 15 pounds, or a financial advisor telling a client to save more - things that people should do and want to do but probably don't like being told to do so.

But having a will done is so easy, important and (in most cases) inexpensive, that I make an exception and have no problem telling my clients to get one done.

Why do you need a will? Well, because if you don't have one when you die, then your things (money, cars, house, jewelry) get distributed not according to your wishes, but to someone else's. The state legislature's plan, that is. There are laws that step in when someone dies without a will, since this happens often.

I'm sure most adults have at least considered the idea of having a will done. A lot of times it comes up at the purchase of a first home or at the birth of a child. Both of these times make sense as estate planning events since wills deal with transferring assets and providing for guardianship of children, among other things. For most people it's a very useful and important document. A poll done in 2007 showed that almost 60 percent of all adult Americans do not have a will, though. So why is this?

People don't like to think about dying. I don't like to think about being dead and I certainly don't like to think about my children growing up without me or my wife. What got me over this reluctance is to hear about people who didn't plan for their deaths and their loved ones. People die - it's not pleasant to think of but it happens all the time.

Many people simply think they don't need a will, because they don't have lots of money that will be part of their estate. This is a good reason to not spend thousands of dollars on complex estate planning, but again, wills are for more than just transferring bank accounts from one person to another. You can use a will to give someone a specific item that might not have a substantial market value but is important to your family. I see this often with clients who want to give a specific child a piece of heriloom jewelry, for example. Also, and I think more importantly, you can appoint guardians for children in a will.

Cost is a concern also I'm sure. Especially in this economy, people don't have extra money for "optional" legal work. A simple will might, however, be the cheapest service I offer. Sure, estate planning can get complex, but I can accomplish most simple will goals (naming a guardian for child, specifically giving some property to people) very affordably.

So, if you don't have a will, you should consider getting one done or at least get some legal advice on what would happen to your estate without a will and then make an informed decision. Maybe you have tons of money and want to give some to a friend who wouldn't otherwise be entitled to a share of your estate. Maybe you have your grandfather's watch and really want your nephew to have it. Maybe all you need is the peace of mind that your kids will have a guardian of your choosing. If you get over the hurdle of thinking about your mortality, then it's actually very assuring to have a plan in place.

Child Support

I often get calls or emails about child support. Child support is supposed to be simple. Many times lawyers aren't involved in child support proceedings. The family court even relegates this to a special session of the court that is conducted by Support Magistrates who are sorta like judges but not really. Family court has forms for you to fill out to request ordered support or a modification of a prior order. There is a statute on the books and you simply match up income to number of kids and voila - support order.

But of course things rarely go that smoothly.

If you or anyone close to you have been through a support proceeding you will relate to how easily these cases can get complex, weird and messy. The statutory model works for a situation where you have a couple where, for example, a father (or mother if she is not the one living with the kids) has been working the same job for 10 years, is salaried and has enjoyed regular gradual increases in income over his career. The couple splits but have two children who are the only children of the father. In this simple case in New York, the support magistrate would calculate support based on this regular and consistent income and assign the statutory support rate of 25%.

In 11 years of practice, I don't believe I've once seen such a simple example. More typical is the situation where the non-custodial parent (the one the kids aren't living with and therefore the one who is paying support to the custodial parent) has had sporadic or inconsistent income. Maybe he worked in a booming industry right before the recession and is coming off some very good years, but was just laid off and is struggling at a much lower rate of pay. (I know that there are a lot of people experiencing this right now.) Or he's doing great and just landed a job paying double his last job, which he worked at for the last ten years. Now the court has to evaluate an earning capacity of this non-custodial parent, and it has to be fair, right?

I've heard horror stories on both sides: The executive who voluntarily leaves a high paid job for the purpose of having a lower support obligation, and works an under the table job; or, the lucky one who gets a large bonus one year which has no likelihood of repeating but on which the court is now going to base a child support obligation for the next 21 years. And then there are the families with multiple children from different relationships. Again, the law has a chart of percentages based on the number of children. These rates are percentages of basically gross income (it's more complex than that, but for purposes of this discussion think of it as gross income). So for the non-custodial parent of five, a separation can take a relatively large chunk out of take home pay, which could be as low as 70% of gross. That non-custodial parent now has 35% of his pay to live on. Could be tough, but the children need support and current law protects this.

Now think of the situation (more common than you would think) of the father of three kids from an earlier marriage for whom he is ordered to pay 29% of his income as support. He remarries down the road, has two more kids, and because he is relationship-challenged, separates from this mother and now is before a support magistrate for "lucky child support order number two". Is he going to be ordered to pay 25% of his income (the going rate for two kids), which is already reduced by say 25% for deductions and 29% for the existing support order, which would net him with 21% of his income to live on? If he makes $50,000.00 a year, he'd roughly have $800 a month to live on.

This opens up a lot of issues for debate. Should we care that this guy (or gal) is going to struggle to make ends meet? Should he just step up and make it work? Get a second or third job, and live in his parents' basement at 40? Or should the court deviate from the statute (as it is allowed to do in some circumstances) and order less support? This is a common example of how a simple support determination can become complex. And, ahem, why you often actually need a lawyer to help you in family court.

Back on the bloggin bandwagon again . . .

So I've been silent on this blog for a bit. Mostly because I've been trying to focus on my website and facebook, oh yeah and actually running my business which is a lot harder than I thought.

When I started this blog last year, I was only thinking about starting to practice out on my own and actually had a full time day job. My other job wasn't technically a legal position, so the jump back into full time practice was a shock at first. Now I wish I made the jump sooner. I am fortunate to have a job where I get to work closely with all sorts of people in helping them deal with their everyday problems and concerns. I'm actually doing the sort of work I thought about when I decided to go to law school.

So I'm going to change the focus of this blog a bit. Sure it's basically a marketing tool for me - it gets my name out there more, gives more information for my clients and prospective clients - but it also can be a place to discuss the challenges of running a small business in this economy, trying to be a good person first, a good lawyer, and a great father and husband.

Of course the bulk of the articles will be about what I do and there will be lots of useful info on everyday legal topics from real estate to family law to small business stuff. Stay tuned ...