5 Worst Divorce Mistakes - MISTAKE #1 "My kids have a right to know what's happening."

MISTAKE #1: INVOLVING YOUR CHILDREN IN YOUR DIVORCE

While listening to 107.9 (Matty in the Morning) last week I heard a caller who described herself as a 17 year old girl. This girl when asked where she was, stated that she was at court with her Mother for a Contempt hearing against her Father for non-payment of child support. The girl thought it was funny, which is a perfect example of how a 17 year old child is still not mature enough to understand how inappropriate and damaging it can be to involve your children (no matter their age) in any of your divorce disputes.

The mistakes parents make involving their children in a divorce case range from a simple slip of an angry snide comment about the ex, to a revealing argument meant to win over your child because you think they're old enough to understand, to purposeful comments meant to alienate the child from the other parent.

In any of these cases the damage to the child is significant. A simple comment releasing a parent's frustration can put a child in the middle of an argument that they truly can't understand. Children, naturally inclined to want to please their parents, will often agree with both parents, only increasing their discomfort when parent's discuss the "preferences" of their children.

The bottom line is children (even for the most part adult children) want to love both their parents and should be given that opportunity. Even if one parent starts an argument through a child, responding only does more damage. Quite often the instinct to respond and defend oneself is the wrong choice because it only perpetuates keeping the child in the middle of the argument.

The best strategy for dealing with children during a divorce case is to provide them with as much stability as possible and to remember that they still want and deserve the chance to bond with both parents. According to Planning for Shared Parenting: A Guide for Parents Living Apart, children benefit when parents:

• Communicate with each other in a courteous “businesslike” manner.
• Are on time and have children ready at exchange time.
• Avoid any communication that may lead to conflict at exchange time.
• Encourage the children to carry “important” items such as clothing, toys and
security blankets with them between the parents’ homes.
• Follow reasonably similar routines for mealtime, bedtime and homework time.
• Communicate about rules and discipline in order to handle them in similar ways.
• Support contact with grandparents and other extended family so the children do
not experience a sense of loss.
• Are flexible in developing parenting plans to accommodate their child’s
extracurricular activities and special family celebrations.
• Make time to spend alone with their children when the parent has a new partner.
• Are with their children during scheduled times and communicate with their
children when they cannot be with them.
• Respect the other parent’s scheduled times with children and do not schedule
plans that will conflict.
• Discuss any proposed schedule changes directly with the other parent.
• Support the child’s relationship with the other parent and trust the other’s
parenting skills.
• Assure the children that they did not cause the divorce and that they do not have
the power to reverse the process.

Click here to view Mistake #5.

How do I serve Divorce Papers on my spouse (at Fenway Park)?

image from Globe Staff Photo / Barry Chin

As Red Sox pitcher Erik Bedard recently found out, how your ex chooses to serve you with family court papers can be private or very public. As described by the New York Post, Bedard was served with a child-support case by a constable (who happened to be a Yankees fan) at Fenway Park before taking the mound for the Red Sox last week. Serving him at work was not required, but might be your preference if you're a Yankees fan.








What are the requirements for service of Divorce or other Family Court Complaints?

Whether or not you tell your spouse you want a divorce before you serve them with the divorce papers is a personal choice (covered by our previous post: How should I tell my spouse that I want a Divorce?). Once a divorce (or other domestic relations) action is begun, though, there is a legal process to ensure that the opposing party is properly served with the Complaint. The Court will provide you with a Summons which must be served on the Defendant.

In Massachusetts, the requirements for service are covered by Massachusetts Domestic Relations Procedure Rule 4.

Rule 4 requires that service of the summons:

• be performed by a "sheriff, by his deputy, or by a special sheriff; by any other disinterested person..." We typically use the "other disinterest person" in the form a Constable;
• be accompanied by a copy of the Complaint; and
• be made by having the Defendant accept service by signing in front of a notary, or by having the summons delivered to the Defendant personally (in their hands directly), except in the case of some types of complaints which can left at their last and usual place of residence and mailed (see Rule 4(d)(2) for a list of these complaints).

Once served, the Summons must be returned to the Court with proof of service (such as the notarized signature of the Defendant or a sworn statement of the serving constable). The Summons must be served within 90 days after the filing of the Complaint or the action could be dismissed.

If your spouse won't accept service then where you have them served is a matter of choice. Usually we serve people at home, but if we expect them to avoid service (by hiding or not answering their door) then we may be forced to serve them at work or some other public place they are known to hang out often. You may want to consider how serving your spouse at work or in front of their friends could be embarrassing. Although it was satisfying for the Yankees fan to serve Bedard at Fenway Park, it's probably not going to help the chance of that case settling.

Of course, this could also be a unique opportunity for the Jumbotron...

Post-Divorce Problems: My Children Aren't Safe with my Ex!

As described in our previous post, Should my Child Support Change?, there are two types of court orders which always merge into the Judgment, meaning they can be modified if there is a material and significant change in circumstances:  child custody and child support.

The Court retains jurisdiction over provisions relating to child custody and visitation to protect the children. For example, in the event one party becomes unfit to parent the children it would be detrimental to the children to have that provision survive and be unchangeable.

This means that if there is a change in circumstances which has caused your children to be put in an unsafe situation, you can bring that change to the court’s attention and potentially obtain a change in the custody and parenting plan orders.   If the change is an emergency situation, then you can request that the court immediately transfer custody or limit parenting rights by filing an Emergency Motion along with an Emergency Affidavit.

In order to make a change on an Emergency Motion the emergency must be significant enough for the court to make a change without the opportunity for the other party to be heard.  Usually an order after an Emergency hearing will only last for a few days until the other party can attend a hearing and tell their side of the story.

Some examples of significant enough events to constitute an emergency are a parent abusing the child, taking illegal substances, being admitted to a psychiatric facility, or being arrested on a charge that would affect their parenting fitness.

Of course, if you are witnessing an immediate threat to your child’s safety then you should immediately call the police.  Courts can only change orders, which are just pieces of paper.  Pieces of paper don’t protect your children without proper enforcement.

Click here to learn more about filing a Complaint for Modification.

How should I tell my spouse that I want a Divorce?

Card Designed By: Clara Chandler 
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A recent Huffington Post slideshow highlights the problem with breaking the big "D" word: Divorce Cards: The 8 Harshest Ways To Say Goodbye.

Although many couples know a Divorce is coming, in almost all cases one person decides first that the marriage is irretrievably broken down and there is no chance of reconciliation. When that happens, the way that the subject is brought up can set the tone for the case moving forward. Parties can discuss the issue directly, or lawyers can bring up the subject via telephone call or letter. In some cases it may be necessary to have the party served by a constable or sheriff even though that might start the case on a negative note.

While many couples will be comfortable enough to discuss the choice to divorce directly, there are two types of cases where it doesn't make sense to do so:

1. The first and most obvious reason that discussing divorce directly may not be appropriate is in cases of domestic violence. In these cases reducing or avoiding potentially volatile interactions is most important. Similarly in cases where one party fears the other (even if there isn't a history of violence) then direct communication may be problematic.

2. In cases where funds may be wasted or hidden, it is sometimes important to have the other party served with the divorce complaint and summons as soon as possible. This is because the Automatic Restraining Order (Supplemental Probate Court Rule 411) prohibits parties from transferring or wasting assets except for specific exceptions, and goes into effect once they are served with the Complaint for Divorce. In these cases, discussions could tip the other party off and they might avoid service of the complaint.