Five Things to Consider If You Are Waiting Until After the Holidays to File for Divorce

shutterstock_161944220Every December, family law firms tend to see a drop in the number of new clients because people are waiting until after the holidays to file for divorce. There are a lot of reasons, but if you’re among the holiday hem and hawers, you may want to think again.

Among the most common reasons we hear for people waiting until after the holidays to file are: it’s a hectic time and people don’t want to deal with a divorce; they are afraid they’ll ruin the holidays for their kids; or they are afraid their spouse will ruin their holidays by harassing them about the divorce.

All of the above reasons are good immediate emotional justifications for waiting until after the holidays to file for divorce, but there are other things to consider that may have greater long term consequences.

1. Bonuses & Stock Options 

Bonuses and stock options can be tricky in Nebraska divorce. There is no “hard and fast” rule for valuation dates so long as the valuation date the court chooses has a “rational relationship” to the property to be divided, and the court’s decision will be upheld on appeal unless it is shown that the judge abused his or her discretion.

Additionally, employment bonuses are usually payment for a period of past service, and not earned at the moment like salary, so, under Nebraska law, they are usually considered marital property if the period of past service for which they were earned was during the marriage.

The law also says that a bonus earned during the marriage is marital property even if it is not received until after the marriage is over, so long as a the spouse getting the bonus had an enforceable legal right to receive it on the date of the marital separation.

As a result, filing now probably isn’t going to get you out of the court making an equitable division between you and your spouse of a bonus you are paid in January or February…. or at anytime if the bonus was earned during the marriage.

Likewise, vesting of stock options accrued during the marriage are what they are, and that is, most likely, marital property if the stock was earned during the marriage.

The court’s decision regarding both classification of bonuses or stock options as marital property and who gets what part of them if they are marital property is dependent on the facts of your situation. The slightest change in fact can make a big difference in the court’s decision. Your best bet is to consult with a lawyer who is experienced in this area of divorce law before making any decisions.

2. “Revenge” Gifts 

‘Tis the season for gifts – and what better way to exact revenge on a spouse who filed for divorce and ruined your holidays than gifting yourself a brand new Macbook …or television ….or full length mink coat using your spouse’s credit card or with all the funds in that joint bank account?

This may be something to consider if you are filing – either to weigh in your decision whether to file during the holidays, or to guide your game plan in protecting assets before you file.

A note of caution if you are considering being the purchaser of such a “revenge” gift – the judge may not take kindly to your actions, and in the final divorce decree, may reduce your property award by half the amount of joint funds you used to purchase that malicious mink coat or other item.

3 & 4. Death and Taxes 

They are the only two things in life that are for certain. One is death. If you die before your divorce is final, your spouse is your spouse and will be entitled to a portion of, if not all of your estate, unless you have a very well crafted will that excludes them from inheritance and it is upheld by the probate court after your death if your spouse challenges the will.

As a result, although the filing date may not matter, the faster you file, the faster your divorce will be done, so if you are in poor health, you may want to consider this factor.

Regarding the other of life’s certainties – your tax filing in April will provide you with great evidence of the most recent income of you and your spouse. However, there are other ways to get that information, so it is not essential to wait for your taxes to be prepared before you file for divorce.

Also, because it’s so late in the year, filing for divorce won’t affect your tax filing status. Most couples continue to file as “married filing jointly” until after their divorce decree is finalized. It is a good idea to meet with your tax professional or an attorney knowledgeable in tax law, however, and determine if there are advantages to holding off on filing for divorce under your individual circumstances.

Additionally, after the divorce, not only will your tax filing status change, if you have children, the final divorce decree will state who is to claim them as dependents each year. In most circumstances, you will alternate with your spouse if there is one child.  If there are two children, you will each claim one until one child reaches the age of majority, then you will alternate claiming the remaining minor child.

5. The Ghost of Christmas Future

Whichever of the winter holidays you celebrate, be it Christmas, Hanukkah, Kwanzaa, and/or New Year’s, if you file for divorce at this time of year you may run the risk of being re-visited by the timing of your action during every subsequent holiday until the event discussed above occurs (your death, not taxes).

Timing the commencement of your divorce with a holiday that is special to your spouse may be an emotional wound to them that will affect them into the future also. Although you may not have the warmest of feelings for them, this is something to consider. When emotions cool down the road, you may regret your decision.

Even worse, filing your divorce during the holidays may taint this time of year for your children from here forward. They may blame you for your decision and be angry with you now or when they are older, and it may impact your relationship.

Whether this is a concern or not is something you should evaluate when you file. If you choose to file later, you may want to be aware of any other special occasions that coincide with the start of your divorce process like birthdays, Valentine’s Day, or other holidays that are meaningful for you, your children or your spouse.

Make Your List and Check It Twice. 

This list is meant to help you evaluate your individual circumstances. It isn’t exhaustive and you may want to consider other factors as well. Whether you file in December or wait until next year is a choice that you need to make for yourself, with the counsel of your lawyer, based on your circumstances and priorities.

Perhaps finances make it advisable to wait until after the new year to file, but if there is domestic abuse involved, you need to get help leaving safely and leave now. Or, perhaps finances are irrelevant but you don’t want to risk a December filing for emotional reasons or to protect your children’s enjoyment of the holidays. You have to weigh those things yourself and make the best decision for you. 

Regardless of whether you decide to file, get your leg work done as soon as you are able. You will need to figure out what your preference is for living arrangements during the divorce, open a new bank account in your name only and get current financial statements and account statements. The end of the year is a great time to collect copies of your financial and account statements as the end of year print outs arrive in the mail.

Now is also a good time to do the leg work you need to get your legal team in place. Schedule a meeting for an initial consultation with attorneys you are considering so you can decide whom to hire. This will also help you to put together a game plan and arm yourself with legal advice tailored to your individual circumstance so you can get your ducks in a row before filing. The sooner you do those things, the better off you’ll be.

Don’t Go It Alone

If you are considering filing for divorce, Hightower Reff has a team of experienced divorce attorneys who can help you work through the things you need to consider to decide the best time to file under your unique circumstances.

Call the office at 402-932-9550, or contact us online and make an appointment to come visit with us. Don’t go it alone.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts.


For details about the author, Hightower Reff  Partner Attorney Tracy Hightower, visit her profile page.

More information about Hightower Reff’s family law practice is available here.

If you need help with a Nebraska family law case, contact Hightower Reff Law today and come visit with one of the attorneys at the Omaha office. 

Holiday Parenting Time – Avoiding a Nightmare Before (or During) Christmas

boy with chalkboard logo parenting pointers-thumb-700x466-65474-thumb-500x332-65475Holiday parenting time can be hard for parents living apart but parenting together. But, as the title of this article promised, there are some things you can try to help smooth holiday parenting time and avoid a nightmare before (or during) Christmas.

As longtime child custody lawyers, we know that trying to make holiday parenting time work so everyone is happy can be hard on you. That’s especially so when you feel like you’re the only parent who’s trying. But remember, what you’re doing is in the best interests of your children. It’s all about them.

An added incentive to consider – the potential benefits of working hard to minimize holiday parenting time troubles between you and the other parent go far beyond making the holidays nice for your child. Child psychology experts say that after a divorce, parental conflict over child care issues puts children at greater risk for behavioral and emotional problems.

Here are a few tips to help you avoid a parenting time nightmare before (or during) Christmas.

Know school schedules in advance

Just when you think you have it all worked out and everything is cool, the school goes and changes the holiday break schedule. Even if your parenting plan can adjust to the new schedule without confusion, a change in school calendars may change the amount of time you have with your child. If you realize it at the last minute, you’re less likely to find a solution that both parents can agree on before the holiday.

In the best case scenario, you and the other parent are able to agree to change things up a bit to give your child an opportunity to have as much time as possible with both parents. But if you can’t agree, you may need to enlist the help of an attorney. For that reason, it’s a good idea to check holiday calendars for the school year as soon as the school publishes them. If you didn’t do that for this school year, check the calendar now for all of the holidays yet to come and try to get things worked out as best you can if there is an issue.

Stick to the plan

This may sound simple, but you might be surprised at how frequently one parent decides, on their own, to do something a little different during holiday parenting time without saying anything to the other parent. Usually it’s because they believe it’s a minor change that’s no big deal. Their belief is nearly always incorrect.

Whether it’s something like changing pick up or drop off time by just fifteen minutes, or having someone else pick up your child and bring them to your holiday celebration instead of picking them up yourself, if it’s something different from what the parenting plan says, don’t do it unless the other parent knows your plan and agrees. Both parents must agree in advance on any deviations from the parenting plan.

Figure things out early and communicate

This is the most important thing: communication. However it works best in your situation, let the other parent know what your plans are and give them all the info they need to feel informed and clear about what is going on.

Many times, if we’re in the dark about something, our imagination takes over and we conjure up all kinds of things that upset us and can cause arguments for no reason. Clear, consistent communication can alleviate this avoidable problem.

Don’t be a holiday parenting time Grinch

This is where the “being the bigger person” part comes in. No matter how you feel about the other parent, their holiday traditions, their significant other, or anything else that matters to your child, don’t bad mouth or bash.

As hard as it is sometimes, remember that it’s about doing what’s right for your child’s feelings and well-being; it isn’t about you. When you communicate with your child about their holiday time with the other parent, or your child is telling you about it, be positive. By doing so, you’ll make your child feel supported.

Also, if something happens that is beyond your ex’s control, or is out of the ordinary, be flexible. For instance, if you are supposed to have the kids Christmas Day and your ex is supposed to have them Christmas Eve, but the ex is called into work on Christmas Eve, try to accommodate some time for them to enjoy Christmas Day with the kids, even if it puts a damper on some of your plans.

Get technical 

There are lots of options for sharable calendars on the web – ranging from Google to parenting calendar websites. Use one of them.

Shared calendars are a great tool to make sure everyone is clear on who needs to be where when, so everyone is on the same page. If you have tech trouble, you may even ask your child to participate and help you out. Most kids are tech savvy by elementary school. This will make them feel included in an appropriate way while giving them clarity as well.

Don’t Go It Alone

If all else fails and you need legal advice or need to take action on a parenting plan problem that manifests itself over the holidays, Hightower Reff has a team of experienced child custody attorneys and a mediator who can help.

Call the office at 402-932-9550, or contact us online and make an appointment to come visit with us about your parenting time issue during an initial consultation.  Don’t go it alone.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 


For details about the author, Hightower Reff Partner Attorney Tracy Hightower-Hennevisit her profile page.

More information about Hightower Reff’sChild Custody practice is available here.

To schedule a time to meet with one of the experienced attorneys at our downtown office, contact us.

Male domestic violence survivors

Domestic violence brings can bring to mind an image of a woman with bruises and black eyes. While this is one face of domestic violence, there are others. Some of them – more than you may think – are male domestic violence survivors.

According to a Centers for Disease Control survey, more than 1 in 4 men will be victims of intimate partner abuse during their lifetimes.

Getting help in a domestic violence/intimate partner abuse situation can be frightening and humiliating. As an attorney who’s worked in this specialized field of law for nearly a decade, I’ve found that embarrassment can be especially intense for male survivors.

If you’re a man experiencing intimate partner abuse, know that there are attorneys who are sensitive to your circumstances and will listen to you. Also, the law is here to protect ALL survivors of domestic violence – male and female.

Nebraska Criminal Domestic Assault Statutes are Gender Neutral

Nebraska law recognizes domestic assault as a separate crime from other forms of assault. Additionally, the language of the statute does not require that there be an actual physical injury for a domestic assault to have happened. In certain situations, threats can be enough.

This law is drafted the way it is in recognition of the fact that domestic abuse takes many different forms – from threats and intimidation to physical assault with weapons or other things that cause injury.

Nebraska Family Law Statues Offer Protection for Male Domestic Violence Survivors 

Nebraska Family Law Statues include the Protection from Domestic Abuse Act. The Act protects all victims of domestic violence and is intended to provide services to help deal with its trauma.

As its name indicates, the Protection from Domestic Abuse Act also provides protection from domestic abuse in the form of protection orders and penalties for violating them.

Domestic abuse protection orders can prohibit an abuser from “threatening, restraining, assaulting, molesting, attacking or otherwise disturbing the peace” of his or her victim. The orders can also forbid phone calls and all forms of contact, remove an abuser from the place where the victim lives and provide for temporary custody of children, among other things.

Emergency Protection Orders 

A traditional protection order requires that the alleged perpetrator be given notice and the opportunity to appear at a hearing to defend themselves against the proposed order. However, the Protection from Domestic Abuse Act allows for emergency protection orders where the victim can show they are in immediate danger of abuse.

These emergency hearings, during which only the survivor is present, are called “ex-parte” hearings. If the court refuses to issue a temporary, ex-parte emergency protection order, it will schedule a hearing where both sides have the chance to present evidence. If the alleged abuser doesn’t show up for that hearing or shows up and fails to convince the court, the court will issue the protection order.

If the court agrees to enter a temporary protection order, the order will remain in effect while the court allows time for the accused to be served with the order and to appear and defend themselves against the protection order continuing.

Once the alleged abuser is served with the ex-parte protection order, it can go several ways:

  • If the alleged abuser is served with the protection order, but doesn’t contact the court to request a hearing within 5 days of being served, the temporary order becomes a final order for one year.
  • If the alleged abuser does request a hearing within 5 days of being served, but  doesn’t show up for the hearing, the order also becomes final for one year.
  • If the alleged abuser requests the hearing within the required time period, and then shows up for the hearing, the court will hear evidence from both sides and decide if the protection order should stand.

When Children are Exposed to Domestic Violence

Along with recognizing that men are sometimes the victims of domestic violence, Nebraska law also recognizes that children exposed to that domestic violence are affected – regardless of who is the victim and who is the abuser.

The law says that both parents are responsible for protecting children from the physical and psychological trauma of domestic violence. This means getting the children out of environments where they’re exposed to domestic violence.

Parents who fail to keep their children out of harm’s way when it comes to domestic violence may lose custody. This could mean the children are placed in foster care – with strangers or with a relative. Whether you’re mom or dad, if you’re a victim of domestic violence and your kids are exposed to it, you’re putting your children and your parental rights at risk.

Protecting Children When you Leave

Regardless of your gender, it’s crucial to take steps to protect your children when you leave a domestic violence situation. That means getting protective orders and custody orders in place. An attorney who knows the ins and outs of the legal and safety issues involved is an important support.

The Nebraska Parenting Act has special provisions for developing Parenting Plans in custody cases involving domestic violence. In all custody cases, specially trained mediators are required to screen for domestic violence. If they determine that domestic violence is an issue, they may find that mediation isn’t appropriate, or that another form of specialized dispute resolution is advisable during which a parenting plan with appropriate protections can be developed and agreed upon by both parties.

If mediation is not an option, or not successful, and the court has to develop a parenting plan in a domestic abuse case, the plan will include provisions to protect the child and/or the child’s parent from further harm.

Don’t Go It Alone

Hightower Reff has a team of attorneys experienced in the specialized issues and procedures that come with domestic abuse cases.

From the criminal end to protection orders and family law and custody issues, we can help. One of our lawyers would be glad to meet with you to talk about how we can help with your case.

Call the office at 402-932-9550, or contact us and make an appointment to come visit with us about your case at our downtown Omaha, Nebraska office.  Don’t go it alone.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 


For details about the author, Hightower Reff Attorney Scott Hahn, visit his profile page.

More information about protection orders is available here. 

 

Must Have Information on Child Custody: Joint vs. Sole Custody – What it Means

shutterstock_18287620Going through a child custody case can be tough for parents, especially if you’re in the dark about Nebraska child custody law.

In this series, Must Have Information on Child Custody, we’ll take some of the mystery out of the law and give you information you need about child custody in Nebraska.

This week, attorney Scott Hahn deciphers joint vs. sole custody under Nebraska Law.

The Definitions 

When we talk about child custody, we’re talking about two different kinds of custody: physical custody and legal custody. Physical custody means who has physical possession of the child; legal custody means who has decision making power on the child’s behalf. Both kinds can be joint or sole.

Joint legal custody means the parents share in all legal decision making for the child and must agree, unless the order contains a provision that, in an impasse, one party will have final say. It can be argued, however, that such a provision, in effect, converts the order to one of sole legal custody.

Sole legal custody means only one parent has legal decision making rights for the child, except in cases of medical emergency when the child is with the non-custodial parent. In that circumstance, the non-custodial parent may make medical decisions for the child.

Joint physical custody means split time – or close to it. The cut off is whether each party’s parenting time exceeds 142 days a year. Generally, to be considered a “day” the parenting time includes an overnight stay.

Sole physical custody means one parent has the majority of the time with the child. In a sole custody arrangement, the non-custodial parent typically has what is referred to as “Wilson” visitation, which means every other weekend, alternating holidays, and one week night visit that does not include an overnight.

What will the Judge Decide?

Under Nebraska law, the judge cannot favor one parent over the other in custody decisions based solely upon that parent’s gender. The judge is to base the custody decisions on the child’s best interests, a subject we covered in detail in an earlier article. That article provides great information on the specifics that the judge takes into consideration when making a custody determination.

If you and the other parent can decide the custody arrangements between yourselves through mediation or negotiation with the help of your lawyers, you will be better off in the long run. In most cases parents who decide their own custody and parenting time arrangements have more success with co-parenting long term.

Regardless of whether parents have joint or sole custody, each parent will still have the right to access the child’s educational and medical records.

How Custody Affects Financial Support

If each parent’s time exceeds 142 days per year, Nebraska Law says the court must use the joint custody calculation worksheet. That means child support for the parent receiving support will be reduced from what it would have been in a sole custody situation.

Reasonable and necessary direct expenses such as clothes and extracurricular activities are split between the parents according to the percentage of each parent’s child support contribution. In other words, if one parent pays 30 percent of the child support table amount, and the other parent pays 70 percent, they will respectively pay the same percentages of direct expense for the child.

On the other hand, if either parent is awarded sole physical custody, there is not a separate provision for direct expenses. Instead, the parent with sole physical custody is expected to pay for those expenses out of their child support award.

How It’s Put on Paper

Whether the judge makes the decisions in your case about custody and parenting time or you and the other parent decide through mediation or negotiation, the specifics must be put into a written parenting plan that complies with Nebraska law and is approved by the court.

Once the judge approves and signs the parenting plan, it is considered an order of the court and willful violation is punishable in contempt proceedings.

Don’t Go It Alone

Hightower Reff has a team of experienced child custody attorneys, as well as a trained, certified mediator. One of our lawyers would be glad to meet with you to talk about how we can help with your case.

Call the office at 402-932-9550, or contact us online and make an appointment to come visit with us about your case during an initial consultation.  Don’t go it alone.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 

What to Expect from Your Lawyer – The Bill. Five Tips for Controlling Your Legal Fees

shutterstock_124994786-thumb-400x500-65288Lawyers can seem like they’re from a foreign land with their own strange customs and language. And, let’s face it, sometimes (okay, a lot of times) some lawyers seem unapproachable, which can make the client experience less than a good one.

At Hightower Reff, we do our best to be approachable, be clear about our legal fees, and have a productive relationship with our clients. A big part of that productive relationship is helping our clients know what to expect in all areas of their cases so they can be realistic about their goals.

In this series, What to Expect from Your Lawyer, Hightower Reff Partner Attorney Susan Reff will give you some useful information to help you understand why your lawyer handles things the way they do and to maintain reasonable expectations regarding your attorney and your case.

This week: The Bill. Five tips for controlling your legal fees.

1. Pick Your Battles

We covered this in detail in the last article of this series, and it’s so important when it comes to controlling your legal fees, that it’s worth repeating.

Money is an important form of “fuel” to help you reach your goals in life in many areas, including reaching your legal goals.

If your lawyer charges by the hour or by the task, the more issues you choose to fight, the more hours it will take. The more hours it takes, the more money you spend. Unless your money fuel tank is unlimited, you have to decide where to focus your money fuel.

If you spend it all fighting over things that really don’t matter in the end, you may find you don’t have any left for the issues in your case that truly matter to your life and your child’s. Pick your battles and put your money fuel where it counts.

2. Practice Phone Efficiency 

In an earlier article, we talked about what to expect from your lawyer regarding phone calls. Phone calls are a fast way to run up your bill. Remember: each time you call, you get a charge on your legal bill.

Unless it’s something urgent or time sensitive, put off the call if the question can wait until the next time your lawyer calls you, or until you have more than one question. We recommend our clients make a list of these “little” questions that are bound pop up and ask them all at once.

If you need regular reassuring from your attorney personally, and if your attorney is willing and able, you may want to schedule a weekly phone call with them when you’re in the active phases of your case. That way, you can have peace of mind by touching base at least once a week, and have your “little question list” ready to go for the weekly call.

3.   Keep Your Eyes on the Prize

When you talk to your lawyer, stick to the legal issues in your case. As compassionate as your attorney may be, and as much as they may care about your case, they are a counselor at law, not the kind for emotional or mental health support. In other words, your lawyer is qualified to give you legal advice, not emotional therapy.

A licensed professional counselor can be an important support during stressful litigation. Their hourly rate is probably quite a bit lower than your attorney’s and may be covered by your health insurance. Legal fees are 100 percent out of your pocket.

4. Know How Your Attorney’s Firm Bills  

Attorneys can bill by the hour, by the task, with a flat fee or by a percentage of the money you recover. Aside from attorney fees, legal costs like depositions can add up. So you don’t have any surprises, find out up front your firm’s billing method and what costs your attorney expects may be involved in litigating your case.

Also, if your lawyer bills by the hour, find out in what increments they bill. A lawyer who bills in a fifteen minute increment will end up costing you more than one who bills in a six minute increment. For example, at $275 an hour, a four minute phone call will cost you $27.50 at a firm that bills in six minute increments. The same phone call will cost you $68.75 if your firm charges in fifteen minute increments.

5. Put It in Writing

Signing a Contract for Legal Services with a law firm may seem daunting, but it’s as important for your protection as it is for the firm. The contract sets the rules between you and your lawyer on how your representation will be handled – including fees. Make sure you have a contract that includes clear language regarding the firm’s rates for the attorneys and support staff and the method of calculating your legal fees. Read it thoroughly before you sign.

If there is ever a disagreement about how you’re being billed, a contract that is clear in its terms can be a good thing to refer to in deciding whether billing is happening according to your agreement with the firm.

Next Time…

Watch for Part IV of our series – unnecessary roughness in the practice of law and why it could mean a flag for your case.  

Let Us Know if We Can Help 

To find out more about Hightower Reff and how we can help, call us at 402-932-9550, or contact us online.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 

Must Have Information on Child Custody 
Part III: Parental Unfitness

shutterstock_87396635Going through a child custody case can be tough for parents, especially if you’re in the dark about Nebraska child custody law.

In this series, Must Have Information on Child Custody, we’ll take some of the mystery out of the law and give you information you need about child custody in Nebraska.

This week, Hightower Reff attorney Scott Hahn explores parental unfitness under Nebraska Law and what it could mean for your child custody case.

Defining Unfitness in Child Custody Cases

In every custody case, the judge is first required to make a finding regarding the fitness of both parents. However, Nebraska statutes don’t define parental unfitness when it comes to custody cases. Attorneys and Judges have to look to law made by other cases to determine what it means.

Under Nebraska case law, parental unfitness in a child custody case means “a personal deficiency or incapacity which has prevented or will probably prevent, performance of a reasonable parental obligation in child rearing and which has caused, or probably will result in, detriment to a child’s well being.” Ritter v. Ritter, 234 Neb. 203 (1990). Fleshing out what that means in human terms takes a bit more analysis.

It’s helpful to look at what unfitness probably is and what it probably isn’t. It’s best to say “probably” because the judge has a lot of discretion when it comes to weighing evidence in a fitness determination. Each case is different and a small turn of facts can make a big difference in the court’s decision.

What Unfitness Probably Is

Figuring out many of the behaviors that could prevent someone from doing what they need to do as a parent or result in harm to a child’s well being is an exercise in common sense. Some of the most common include: excessive drinking in the presence of the child or drinking that impairs a parent’s daily functioning, failure to take care of a child’s basic needs and physical or verbal abuse of the other parent in front of the child.

The more egregious behaviors are, the more likely it is that they will lead to a finding of unfitness. Things like illegal drug use in the presence of the child, or being under the influence of illegal drugs in the child’s presence, sexual behavior in front of the child, or committing a violent felony are all likely to weigh heavily against a parent in the court’s fitness determination.

What Unfitness Probably Isn’t

As much as you might feel some of your spouse’s behaviors make him or her a dirtbag, those things don’t necessarily make for an unfit parent when it comes to child custody. The judge most likely won’t count marital infidelity, for instance, against a parent unless the child is present when it happens or is exposed to sexual activity.

Also, while things like failing to pack nutritious school lunches, failing to dress the child in weather appropriate clothes, or missing dance classes may weigh into the judge’s determination of best interests of the child when it comes to custody, it won’t add up to unfitness.

One thing that definitely does not determine parental fitness and must not weigh into the decision at all is gender. In Nebraska, a judge cannot consider gender in a determination of whether a parent is fit. Fathers and mothers are equal under the law in this regard.

What a Finding of Unfitness Means to You

If a Nebraska court finds a parent unfit in a child custody case, that parent will not be granted physical custody or legal decision making ability regarding their child. However, unless there is a separate action brought to terminate that parent’s rights, and rights are terminated, they still have certain basic rights.

Under Nebraska law, unless there is a termination of rights, and regardless of who has custody of the child, every parent is entitled to full and equal access to their child’s education and medical records and they may still make emergency decisions affecting the health or safety of the child while the child is in their care.

Cases Involving Allegations of Unfitness Require Experience

The law surrounding parental unfitness in Nebraska can be difficult. It takes experience to navigate this area of law successfully. Hightower Reff can help.

Call us at 402-932-9550, or contact us online, and make an appointment to come visit with us about your case during an initial consultation.  Don’t go it alone.

Next Time…

Watch for Part IV of our child custody series when we explore sole and joint custody.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 

What to Expect from Your Lawyer – Five Key Reasons You Need to Pick your Battles in Court

shutterstock_268621781-thumb-400x267-65274Lawyers can seem like they’re from a foreign land with their own strange customs and language. And, let’s face it, sometimes (okay, a lot of times) some lawyers seem unapproachable, which can make the client experience less than a good one.

At Hightower Reff, we do our best to be approachable, talk like real people and have a productive relationship with our clients. However, like many lawyers, despite our best efforts to do this, we sometimes fall short of our clients’ expectations.

In this series, What to Expect from Your Lawyer, Hightower Reff Partner Attorney Susan Reff will give you some useful information to help you understand why your lawyer handles things the way they do and to maintain reasonable expectations regarding your attorney. 

This week: five of the most important reasons to pick your battles when you are involved in a court case.

Focusing Expectations & Picking Battles

Picking battles is important to help you focus your expectations and develop your strategy for your case. Each court case is made up issues to be decided. In criminal cases those issues, in large part, involve proof as to whether or not the defendant did what he or she is accused of doing. In civil cases – like divorce and child custody – the issues involve who is entitled to what property, and who should have what time and decision making power with the children. 

Sometimes an entire case can rise or fall on one issue, especially in criminal law, and your biggest (and perhaps only) battle choice may be whether or not to enter a plea agreement. Sometimes, however, you have more choices to make regarding your battles and focusing your expectations. This is especially true in family law. 

When your lawyer advises you to back off on an issue, there is a reason. Here are five of the key reasons to listen to that advice, focus your expectations and pick your battles:

1. You Don’t Want to Spend the Rest of your Life (or what feels like it) in Court

Even when the two sides aren’t fighting over every little thing, court cases take a long time. Every issue you choose to fight about adds weeks or months onto the clock. 

First, the lawyers will go back and forth trying to reach an agreement, then, they may have to file motions or other papers with the court about that specific issue asking the judge to decide. Depending on the issue, there may be a special hearing, or it may be dealt with at trial. Either way, chances are it will add time onto your case. 

In some cases, like criminal cases where your freedom is on the line, and your attorney believes the law is on your side, it may be worth all the time in the world to fight nearly every issue. However, in other cases – including divorce and child custody – you should weigh the time it will take to fight over the issue against the likely outcome and ask yourself if the battle is worth it. 

An experienced attorney can advise you regarding your chances of success if you fight a certain issue in your case, and how much time it is likely to take. With that information, you are better equipped to decide if your time investment is worth the likely return.  

2. Other Things are More Important   

Before you decide to fight a battle over an issue in your case, decide your intentions and priorities and make sure winning that issue is in line with them. In other words, focus on what’s important to you.

If you choose to prioritize one issue in your case, and you are successful, it may be at the expense of something else. This is especially true in family law. The court is going to try to make things “equitable,” so issues left up to the court are likely to go a little your way, and a little not your way. 

For example, when it comes to a divorce property settlement, it may mean that you get the boat, but you don’t get the savings account with a value comparable to the boat. Maybe that’s fine with you because you really like boating. But, if you go after the boat just to keep your spouse from having it, and you really need the money instead, you could end up cutting off your nose to spite your face. 

In child custody issues, relationships are usually the most important consideration. First, you should consider how any issue at hand may affect your child’s relationship with the other parent and/or with you. Next, consider how the issue will affect your relationship with the other parent and – as a result – your ability to effectively co-parent your child. If the impact of fighting about an issue on any of these areas will be worse than if you reach a compromise, don’t fight. Work it out. Even if it means giving a little more than you really want. In the end, the return on your investment of sacrifice is likely to pay off.  

3. There are Long Term Consequences  

Decisions you make in your case – especially in family law – could affect you, your spouse, and children for many years.

As an example, in a divorce, you may really want your ex’s mother’s casserole dish. Maybe you really love it, because you loved your mother-in-law & she has passed, so you just want this one reminder of her… or maybe you know your spouse really wants it, so you want to take it to spite them. Either way, decide whether the casserole dish is worth it in the scheme of life.  

In twenty years, is it going to have been worth your time fighting over a piece of bakeware? Probably not. Perhaps the long term consequences will result in damage to your integrity and your ability to remain amicable with you spouse. Those things could render the battle a lost cause – regardless of how it turns out.  

The consideration of long term consequences is especially important when children are involved in a divorce. 

4. Your Money Tree Died

You may have heard the saying that all problems have a solution so long as you have the time and money to find it and make it happen. In other words, time and money are fuel to reach a goal. The same can be said in many court cases. 

Along with costing time, court cases cost money. In most of them, your lawyer charges by the hour. That means every additional battle adds to the bill. Unless your money fuel tank is unlimited, you are going to have to decide where you want to focus your money fuel. If you spend it all fighting over things like casserole dishes, you will soon find you don’t have any left for the issues in your case that are truly impactful in your life and your child’s. Put your money fuel where it counts. 

5. Your Case is About the Law – Not Principals

Very rarely (perhaps almost never) is a court case about principals. Rather, court cases are about the law. When people involved in a court case talk about principals, they are talking about what they feel or believe is “fair” or what they deserve. They are talking about emotions. However, what you feel or believe you deserve isn’t relevant in court. The law is only thing that is relevant. 

If your lawyer is being honest, they will tell you the same. It’s your lawyer’s job to guide your expectations accordingly. That means focusing on the law, not your emotions. 

For example, if you enter your divorce with the goal of taking your spouse to the cleaners because he or she was unfaithful or was a poor excuse for a spouse – “out of the principal of the matter” – you are going to end up disappointed. 

The court does not care whether your ex is an ass. The court can only concern itself with enforcing the law. In most aspects of divorce, and even child custody, being an ass does not mean you are entitled to less money, property, or time with your child. Further, your spouse getting less of any of these things is not going to change a thing about your spouse or what happened between you.

Don’t Make Your Battle Plan Alone 

There is no substitute for the advice of an experienced attorney to help you pick your battles.  Hightower Reff can help. Call us at 402-932-9550, or contact us online.

Next Time…

Watch for Part III of our series when we explore ways you can help control your legal fees.   

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts.  

Must Have Information on Child Custody 
Part II: Five Popular Pointers For a Prosperous Parenting Plan

shutterstock_183002726-thumb-500x445-65282-thumb-400x356-65283Going through a child custody case can be tough for parents, especially if you’re in the dark about Nebraska child custody law.

In this series, Must Have Information on Child Custody, we’ll take some of the mystery out of the law and give you information you need about child custody in Nebraska.

This week, we discuss five popular pointers to help you come up with a parenting plan that will help your child prosper.

1.  It’s Not About You

This one is SO important, it should count for more than one pointer. It is critical. The parenting plan is not about you. It is about your child. If you remember nothing else, remember this.

It’s true that the parenting plan will affect your life until your child becomes a legal adult or unless/until it is modified by the court, and you have to be able to live with it – but the goal of the parenting plan is not to fulfill your needs, it is to fulfill your child’s needs. It must foster relationships between your child and BOTH parents.

This should be the focus during every phase of mediating or negotiating your parenting plan – not your feelings about the other parent or what he or she did to you or to contribute to the demise of your relationship.

2. Your Child is a Person, Not Property

Don’t dismiss this point as silly. Failing to remain actively conscious of the fact that your child is a person with needs and feelings is a common trap parents fall into during parenting plan negotiations.

We often hear parents talking about “my time,” or expressing the belief that they are entitled to parenting time that they want because they pay child support (which is not true). Both of these mindsets turn the focus onto the parent’s entitlement, not the child’s feelings or life. The parenting plan that you develop with the other parent with the help of a mediator or your attorney is about your child’s relationship with you and the other parent. It’s about the child’s life, not about entitlements to your child.

Changing your mindset and reminding yourself throughout the parenting plan process that it is about supporting your child as a person as he or she grows, not about your ownership of or entitlement to him or her, will help you reach your goals for your child.

3. It’s Not Always Going to go Your Way – and That’s Good

For a mediation or negotiation to be successful, there has to be give and take. The Parenting Plan process is no different.

We often tell our clients that the best agreement is one where both parties gave a little more than they wanted in some aspects, and got a little more than they wanted in others. Those are the agreements that last and that are livable.

If you are happy as a pig in a poke post parenting plan process, but the other parent has their knickers in a knot, the other parent isn’t likely to want to follow that plan for very long. Their lack of buy-in to the plan will probably manifest in lack of cooperation, combative attitude, and eventually a Petition to Modify custody and/or the Parenting Plan.

Giving up a little to make the other side happy – so long as it’s good for your child – can help you save yourself a headache in the long run.

4. Strong Fences Make Good Neighbors – Strong Parenting Plans Make Good Parents

A good, strong fence helps keep the peace between neighbors because its very presence creates and enforces a boundary. That’s what a Parenting Plan does too – it creates a sort of parenting fence.

Because the Parenting Plan is words on paper, rather than wood and nails, you must make sure those words are strong, just like wood. That means they must be clear. Everyone has to know and understand what they mean and know what will happen and when. If there isn’t clarity, there will be chaos.

In the case of a fence, the chaos is neighbors, their pets or children encroaching on one another’s property. In the case of a parenting plan, it’s late night phone calls to clarify plans, missed pickups or drop offs, last minute problems with holiday plans, and other myriad pains in the neck.

To avoid chaos, build a good parenting fence. Don’t agree to a Parenting Plan unless it is clear to you and you are sure it is clear to the other party.

5.  Don’t Go It Alone

As a trained, certified mediator, and an attorney who has focused for years on family law and child custody, I can help you through the child custody and Parenting Plan process.

Call my office at 402-932-9550, or contact us online and make an appointment to come visit with me about your case during an initial consultation.  Don’t go it alone.

Next Time…

Watch for Part III of our child custody series when we explore parental unfitness and what it can mean in a custody case

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts.