Let’s Talk About… Kurt’s Guitar

By Joseph DiPiazza, Esq.

Frances Bean Cobain, daughter of the late Kurt Cobain, filed for divorce from her husband in March 2016.  The couple was married for just under two years.  Several news outlets have reported that Isaiah Silva, Cobain’s spouse, is seeking the guitar Kurt Cobain played on stage during Nirvana’s famed “MTV Unplugged” performance.  Silva contends that Frances Bean gave him the Martin D-18E guitar as a wedding present. Frances Bean has denied giving Silva the guitar and is asking for it back.  Frances included a request in her divorce petition (filed in the Los Angeles Superior Court) to deem her inheritance, which is a pre-marital asset, to be excluded from the martial property.

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What would happen in New Jersey?

In New Jersey, generally speaking, most instances of inheritance are not subject to equitable distribution in a divorce case.  For example, if a wife receives an inheritance as a result of her father’s passing, she is not required to share the inheritance with her husband. To maintain this exemption, however, certain restrictions are necessary.  The most common mistake which causes the exempt inherited property to be subject to the equitable division of assets is when the inherited spouse commingles or transmutes the asset.

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If an inherited house given to the wife is re-titled into both the wife and husband’s names, New Jersey courts have construed this as an inter-spousal gift, making the inheritance subject to equitable distribution. This act of gifting converts what would otherwise have been separate pre-marital property into marital property.  See Perkins v. Perkins, 159 N.J. Super. 243 (App. Div. 1978).  In addition, if the inherited asset (e.g. cash) is deposited into a joint banking account, or used to acquire something for the marriage, it is likely to be subject to equitable distribution.

Hypothetically, if Cobain’s divorce was occurring in New Jersey, Silva’s case would focus on proving that the guitar was indeed an inter-spousal gift.  Considering the large estate of Frances’s father (various news outlets report the number as $450 million), it is not surprising that Silva is taking this position.  It has also been reported that Silva is seeking a $300,000 yearly spousal support payment.  There have been no reports of a prenuptial agreement between the parties.

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Please follow the firm on Twitter @lmllawyers. Photos via Unsplash and Wikipedia. 

Let’s Talk About… 5 Halloween Tips for Divorced Parents

By Joseph DiPiazza, Esq.

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With tomorrow, Thursday, September 22nd the first day of all– and Halloween right around the corner– we must acknowledge that holidays can be a difficult time for divorced parents.  It is normal for recently divorced dads (or moms!) to feel guilt or anxiety over the breakdown of a marriage and the effects on their children.  Nevertheless, it is important to make every moment count with your child, no matter how awkward and unfamiliar Halloween can be as a newly single parent.

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Here are 5 tips for divorced parents about co-parenting, communication, and safety on Halloween:

  • Share your children.
    If this is not stipulated in your divorce agreement, try to share the time equally. For example, one parent may get the costumes and dress the child and the other parent may go with the child for the trick or treating.  Or, share the time between the two households if you live close enough.
  • Communicate with your ex.
    Elementary schools generally have many planned Halloween activities during and after school that your child will be attending. If you are in a joint custody schedule, it is important to communicate with the other parent with regards to any upcoming school functions and emails that you receive from the teacher. In your communications with your ex, be respectful.  This may sound difficult, but it is helpful for children to see that their parents are treating one another in a respectful and cordial manner.
  • Do not put your children in the middle.

Don’t ask your children with whom or where they would like to spend Halloween. They do not need or want the pressures associated with having to choose.  Children should not have to feel like their allegiance is being tested.

  • Be safe.

Do not get so caught up focusing on your ex that you forget to take safety precautions.  Make sure your children have a flashlight or glow stick with them.  Try placing some reflective tape on the back of their costumes.  If your child is carrying a prop, like a sword or pitchfork, ensure that the tips are smooth and flexible.  Also make sure that costumes are not too long such that they would cause tripping hazards.

  • Make your own plans if necessary.
    If you do not have your children on Halloween, do not make a big deal about it. There will be other Halloweens and other holidays.  Find a friend to share the time with. Do not make your children feel guilty that they are not with you.

Whether you are deep into the divorce process, or whether you have been divorced for years, the key is in the way you handle the holiday with your ex and how you present it to your children.  Remember that the children should be the primary focus, and work from there.

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Please follow the firm on Twitter: @lmllawyers. Photos used with permission from HubSpot

Let’s Talk About… Br-ivorce and Ange-nuptial agreements (No!)

By Francesca O’Cathain, Esq.

I wasn’t planning on doing any more People Magazine divorce posts, but then again I never thought Brad and Angelina would be on that list.

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I am sure Brad and Angelina will both be fine in the end, but what about all their children? They have 6 children together: Maddox, 15; Pax, 12; Zahara, 11; Shiloh, 10; and twins Knox and Vivienne, 8.

We all know their story of their children and love seeing pictures of the family: a perfect blend of birth children and adoptive children. We remember reading about Brad adopting Maddox, Pax and Zahara, after Angelina went through the adoption process prior to them being together. Most of us remember her wedding dress from two years ago with the children’s artwork worked into the train.

According to the news reports, Angelina has requested joint legal custody of the children and that she be granted physical custody of the children, leaving Brad with parenting time with the children.

What is joint legal custody? In New Jersey, joint legal custody is what we call decision-making custody, i.e.  both parents have equal say on decisions relating to the health, education and overall welfare of the child.

What is physical custody? In New Jersey, physical custody is where the children will live, leaving Brad with parenting time with the children.

What does this mean? Unfortunately at this point it’s all speculation:

We can hope that they have already worked out a parenting time plan with the assistance of qualified professionals (i.e. attorneys, mediators, therapist, etc.) and that this was just the formal filing with the Court.

Worst case scenario is that this filing in regard to the children blindsides Brad and now they are in for a custody fight over the residential custody of the children. At 15, 12 and 11, a New Jersey court would take into account the preferences are of their older children. The court is going to consider who can provide them the stability and ability to maintain their current lives (i.e. where they go to school, engage in activities, nannies, etc.).

I imagine (and hope) and they will both try to keep this out of the public eye just as they attempted to keep their marriage out of the public eye.

However, people will be digging and sites like TMZ will flood us with more information.

Stay tuned….

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Please follow Francesca on Twitter: @FrancescaOCatha. Photos via Wikipedia and Flickr. 

 

Let’s Talk About… The Delivery Room

By Francesca O’Cathain, Esq.

Although my daughter is now a first grader, I still remember giving birth to her like it was last week. I know every mom feels the same way. I remember all the decisions that had to be made: birth plan; medicated labor or not; who will be in the delivery room; etc.

Those decisions were relatively easy for me: birth plan (go with the flow); drugs (yes, please!); and delivery room (husband and nurse-practitioner/sister).

Those decisions are not as easy for an unhappy couple where one partner is pregnant and the other partner wants to be part of the birthing plan and delivery of the child.

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In 2014 the New Jersey Courts denied a father’s application to be present in the delivery room, holding that the mother’s privacy rights outweighed the father’s pre-birth rights (See Plotnick v. DeLuccia, 85 A. 3rd 1039 (N.J. Super. Ch., 2013). Christine Fitzgerald, Esq.’s blog post on this case can be found at here.

Earlier this month a judge in Staten Island, New York, made a similar ruling in a case of first impression, declaring that a woman may bar her estranged husband from the delivery room as she gives birth to her child. (See B.T. v E.T. 2016 NY Slip Op 26280 Decided on September 2, 2016 Supreme Court, Richmond County DiDomenico, J.)

Both decisions are based on the wife’s right to privacy.

In the New York case the Court also focused on a woman’s right to determine her course of medical treatment and stated that because HIPAA would not permit the husband to see the wife’s health records over her objections, the same reasoning should apply to being present during a medical treatment.

Having not been a part of my son’s birth experience (we adopted him as a toddler, which you may read about here) I can wholeheartedly say that while being part of the birth experience is not the be-all-and-end-all, as a parent, it is certainly something you truly wish you can be involved in.

This is a difficult issue and I see both sides.

That being said, it is clear that the judicial trend is to allow a woman the right to choose who is in the delivery room.

As a practitioner, we need to advise our clients to address this issue before it becomes a last-minute issue.  If you foresee this being an issue in the case, it needs to be addressed right away and if it cannot be resolved, you may consider filing an application with the Court to address the ancillary issues, such as establishing parentage, being named on the birth certificate, and establishing legal and physical custody of the child.

As a parent of a birth child, and adoptive child, and a family law practitioner, I would also highly recommend that you stress to both parents the importance of not telling the child as they get older why or why not the other parent was in the room.

Children love hearing their birth stories and they should not be put in the middle of the disagreements between the parents. Our children will not remember who was in the delivery room, but they will not forget the arguments that will come up in later years.

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Please follow Francesca on Twitter @FrancescaOCatha. Photos via Flickr-ers David J. Laporte and Class V

Let’s Talk About… A Fall Fun Day

By Georgia B. Barker, Esq.

Coping with divorce can be a positive experience. Although divorce is known to be a difficult process for adults and children alike, coping with that process can include a wonderful gift:  special, planned, one-on-one time with your kids. All families live busy lives, and spending one-on-one time with your kids can be extremely hard to accomplish. When divorcing, time with your kids is planned— well, why not make the most of it and plan a fun fall day! This is the time to make new memories that you and your children will cherish. Below is a list of fun activities to consider:

Apple Picking!

  • Apple Picking: Spend time walking through the orchard and helping your little ones reach the higher branches. There are lots of “Pick Your Own” orchards, all of which will result in some tasty apples that can be turned into ingredients for a recipe at home.
  • Corn Maze: Work together as a family to try to get out of the corn maze. Some mazes have clues that need to be deciphered – a great opportunity to engage with your children in a new way.

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  • Visit a Historic Estate: Visit beautiful grounds of any number of the historic homes in your area and learn about local history with your children.
  • Fall Fair: Most towns and schools have a Fall Fair with all sorts of fun fall activities to be enjoyed as a family. Check out your local school for more information on how you can take advantage.

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  • Tour a Park and learn about wildlife: Spend time outside with your kids, all while learning about local plants and animals. One example is the Discovery Club for Families series (hosted by the Central Park Conservancy), where families get to explore Central Park’s diverse plant and animal life together on a guided tour.

When making plans, always be sure to consult your custody and parenting time Agreement or any court order concerning your children. Follow any requirement to notify your co-parent of any out-of-state travel and observe limitations on crossing state lines with the children. In most cases a day trip is not a problem, but do be sure to know and abide by your own Agreement or court order.

Furthermore, although co-parenting can be very difficult, do your best to keep your co-parent informed and in the loop. Sometimes, increasing information is a way to reduce conflict and animosity.

Finally, you will want to save memories and take photos of your adventures, but be careful of posting pictures of your children on social media. Consult your Agreement to ensure that you are not prohibited from doing so, and do your best to post respectfully with your co-parent in mind. Finding out about what your kids are doing by finding social media posts online can be quite jarring and may lead to increased tensions. When in doubt, ditch the social media post in favor of a print for your home or office.

Please follow the firm on Twitter: @lmllawyers.com. Photos via Flickr-ers Jason M. Victor, Onasill Bill Balzo and Lesleyann Cooper. Happy fall!

Plant Perennials In Your Divorce Garden

By Amanda S. Trigg, Esq.

Would you rather spend the rest of your life on a battlefield or in a garden?  Too many people buy into the vision of divorce as a fight, where strategy rises to the level of damaging gamesmanship.  The inevitable changes that divorce brings do not necessarily have to be destructive.  Focus on what you can create, instead of what you might risk, lose or destroy.  Families with complicated financial issues, like business ownership, complex estate or tax planning, multiple homes, and of course, any family with children, have enough at stake for it to make more sense to cultivate instead of abandoning your relationship with your spouse.  The word “stake” refers directly to land and planning for upward growth.   Think of your divorce as a garden.   Stake your claim and plan for progress.

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As any dedicated gardener will tell you, it’s hard work to get any results, let alone good results.  The same applies to your divorce. You will not have complete control over the growth of your plantings or those which come along unexpectedly, like weeds or greenery that you just were not expecting to see sprouting.  You will make tough choices about what goes where and what you might have to let go.  Once in a while, you might have to uproot something that you thought was in a good spot.   Sometimes, despite your best efforts, plants die.

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The best results come with advance planning and careful selection of what you put into your divorce. In figuring out what your family needs for its long term happiness, prioritizing instant gratification or short term solutions might not be the best idea.   It’s like planting annuals in a garden.   They look nice for a short period of time, and glamorize a garden with showy flowers and give you a sense of self-satisfaction after you spend a day getting your hands into the dirt.   By definition, though, they don’t last.   It’s a little harder to plant trees, bushes and perennials but consider the long-term rewards.  You may have to wait a while to see the results of planting perennial plants, trees and bushes, but your efforts will return in future years.   Similarly, think ahead and look for financial and custody arrangements that help you flourish for years.   You are going to have to get your hands dirty to get results and you might not like everything you find below the surface.  Enlist the help of experts who can help you, like financial planners, tax advisors, therapists and coaches. Knowledge and collective experience are powerful.   Take charge and dig in.

If you have questions about how to protect your family in the future, and see it grow in a way that you enjoy, call us at Lesnevich, Marzano-Lesnevich & Trigg, LLC.

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Please follow Amanda on Twitter @AmandaFamilyLaw. Photos via Flickr. 

Let’s Talk About… The Effects of Divorce on Children

By Christine C. Fitzgerald, Esq.

A good friend sent me a photograph of artwork by Morley that said “Let’s fall in love like both our parents aren’t divorced.”  In my mind, this saying stresses the important of protecting children from the conflict of divorce.  We know from years of research that children, who are subjected to parental conflict, are more likely to suffer emotionally.

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In the 1970s, Judith Wallerstein, PhD started a study on the effect of divorce on children.  Specifically, Dr. Wallerstein studied 131 children between the ages of 3 and 18 whose parents were divorcing. The study participants were from Northern California and had been referred by their attorneys and the courts. Dr. Wallerstein followed up with the children at the 18 month, 5 year and 10 year post-separation mark.   In 2004, at the 25 year mark, Dr. Wallerstein and Julia M. Lewis, PhD conducted a follow-up study on the 131 children. Drs. Wallerstein and Lewis used a comparison group of 44 adults from the same communities, but had grown up in intact families. Although Drs. Wallerstein and Dr. Lewis’s findings are often contested and discussed, the findings are remarkable. They found that “[o]ut of their experience of parental breakup, children of all ages reached a conclusion that terrified them: Personal relationships are unreliable, and even the closest family relationships cannot be expected to hold firm.” The study continues stating that children of divorce reported less play, less extracurricular activities, less involvement in enrichment programs and more responsibility during their childhood than the comparison group.  Even more remarkable, the children of divorce were more likely to act out during adolescence and a decrease in attendance by the children and support by the parents of the children’s post-secondary education.

With respect to adult relationships, only 60% of the women and 40% of the men had established stable relationships and approximately 40% had entered into parenthood. In the comparison group, 80% of the group had married by the end of the study compared to 60% of the children of divorce.  The rate of divorce in adulthood was 40% for the children of divorce and 9% for the adults in the comparison group.

Although it may seem that children of divorce will inevitably suffer emotionally from their parents’ divorce, American Psychological Association’s “An Overview of the Psychological Literature on the Effects of Divorce on Children” provides some key factors that parents show know such as that research shows that marital conflict rather than divorce has a greater negative effect on children. In essence, children that are subjected to less conflict pre-divorce, during the divorce and post-divorce are able to adjust better and are emotionally effected less.

Practically speaking, in order to avoid emotional tolls that divorce can have on your children, follow these simple rules:

  1. Children come first: Your children’s needs and best interest comes first. What does that mean?  This can mean many things.  You should establish flexibility with the parenting time schedule.  If the other parent has an important or special event is scheduled during your parenting time, offer that time to the other parent so that the children can enjoy the special event.  Always put your children’s emotional well-being over your personal opinions.  For example, if you think that your children are not active enough during the other parents’ parenting time, it may be better for you to stay silent and let go of your desire to comment to the children or to the other parent about their parenting.
  1. Communicate Peacefully: You and the other parent decided to have children together. You must learn to communicate amicably and peaceful even when you disagree.  If the other parent asks for additional parenting time and you cannot accommodate, instead of saying no, try to see if there is any way that you can accommodate the modification of parenting time.  If you both have competition events, try to see if the children can do both for part of the time.  Most importantly, do not let the children see you and the other parent argue.
  1. Do not put the children in the middle: Do not ask the children to convey information with the other parent for you. Do not make disparaging comments about the other parent. Do not blame the other parent. Do not interrogate your children about the other parent or their parenting time with the other parent.  It is important to remember that your children love both of you.

If you and your co-parent follow these simple rules, your children are more likely to be emotionally healthy.  If you are going through a divorce with children, please contact us at Lesnevich, Marzano-Lesnevich & Trigg, LLC.  We can help you learn the tips to co-parent successfully!

Photo and illustration via the artist Morley and Wikimedia. Please follow Morley on Instagram at @official_morley and Christine on Twitter @cfitz0717.  

The Blog of the Lesnevich, Marzano-Lesnevich & Trigg, LLC Family Law Department