Monthly Archives: February 2016

Do Prenuptual Agreements and Forum Shopping Pay Off? What Can Be Learned From The Breakup of Katie Holms and Tom Cruise

The shorthand answer to that question is that with careful planning, a divorcing couple can Kattie, Tom, Suriavoid a long drawn out court battle.  They can resolve the major issues within a matter of weeks, thus avoiding the stress and expense that is inherent in most dissolution cases.

First, Tom and Katie had a prenuptial agreement regarding their finances, in the event that they ever split up. Therefore, they avoided a long drawn out court battle over division of property and assets. Katie gets $15 million does. That is $3 million for each year that the couple was married.

A prenuptial agreement is a tool used by wealthy people or people with assets. It gives them the ability to alter the normal rules regarding spousal support and community property in the event of divorce. It is a contract between engaged people that takes effect when they get married.

Since the parties financial situation may change during the course of their marriage, it is not always possible to predict, in advance, whether or not a prenuptial agreement will be legally enforceable when the parties separate or divorce. That is why it is important to hired skilled legal counsel when entering into a prenuptial agreement, to ensure that you have adequately complied with all of the legal requirements. While the cost of drafting a prenuptial agreement may be costly, it is far more cost efficient than not having one, and having to litigate property issues when the parties divorce.

A prenuptial agreement cannot include issues regarding child custody and child support. However, Katie was able to get control of the child custody issue by careful planning. First, she moved with her daughter to their home in New York. She stayed in New York long enough to make sure she met the “residency” requirement. She changed her cell phone number and fired all of their New York staff. (She probably did this to get away from the influence of the church of Scientology). She then filed for divorce in New York, rather than California. In New York, there is a presumption of sole custody. While in California, there is a presumption of joint custody. Also, in New York, judges are more likely to listen to arguments regarding the influence of fringe religions, such as Scientology, on children. I am also told that New York is a little more sensitive to mothers who are filing for sole custody.

Thus, by carefully planning this out, and making sure that she met the residency requirements to file for divorce in New York, Katie was able to select a jurisdiction, where the law is more favorable to her position.  In the end, Tom Cruise agreed that Katie would have primary physical custody of their daughter,  Suri, while he would have regular and meaningful ‘visitation’ rights. The distinction between joint physical custody and visitation is important when dividing up parental rights and responsibilities.  Katie also has exclusive say over the choice of her daughter’s religion and education. She enrolled her daughter into a private catholic school. Had this matter been decided in California, they probably would have had joint legal custody. That means that Tom would have had equal say in his daughter’s education and religion.  The parties could have very likely been back in court battling over these issues long after the divorce was final.

As to the issue of child support, in California, that is done by guideline. It is based on the time that each party spends with the child, and the respective incomes of both parties. In any event, I doubt if child support was an issue of contention for Tom and Katie. I cannot imagine Tom Cruise refusing to pay child support, or arguing about the amount. He probably does want his daughter to be financially secure.

So the moral of the story, or the lesson to be learned from the split of Tom and Katie, is that with careful planning, parties can resolve major issues of finances, property division and child custody and support within a matter of weeks, if not days. (Tom and Katie settled most of these issues within 11 days after she filed for divorce)! Thus, they can avoid the stress and expense of what otherwise could have been a long and drawn out court battle.

The Benefits of Effective Co-Parenting

Two Examples of Effective Co-Parenting-These stories are true!co parenting

Good Example #1

Four years ago, I was in a hair salon, getting my hair blown out by one of my still favorite hair dressers, Mary. (I switch between two sisters). During my appointment, Mary was having a fun and lively conversation with a man, who was sitting near her hair station. I knew this man did not work at the salon, as I had never seen him there before. They were both chatting and laughing as though they had known each other for several years. My hair dresser then introduced me to this man as being “Valerie’s father.”Valerie is her now 10 year old daughter, who was 6 years old, at that time.

I had heard my hairdresser speak of Valerie’s father before. Her tone was always positive and upbeat when she mentioned him. Accordingly, I thought they were still married. Yet, that day, she explained that she had been divorced from Valerie’s father for a few years. As a divorce lawyer, I was stunned! I had never seen two divorced people get along so well. They seemed like good friends.

My hairdresser explained to me that her positive relationship with Valerie’s father makes her life much easier. They amicably share custody on holidays, without the need for a court ordered schedule. They don’t have a set place to exchange custody. They just meet up where it is most convenient for them. Sometimes that is at her salon, other times it is at his place of work, other times it is at one of their homes.  Mary told me this arrangement saves her a ton of money. When she wants to go out of town for a long weekend, or wants to go out for an evening in the middle of the week, she knows that she can leave Valerie with her father. She does not have to pay for a babysitter.  She reciprocates and takes care of Valerie for the father when he has plans. Both parents have the peace of mind that when they leave Valerie with the other parent, that she will be well cared for.

Of course, for Valerie, this means that she has a positive and healthy relationship with both of her parents. Fortunately, she does not experience the bad mouthing and acrimony that is typical of many divorced parents.

Good Example #2

My second example is of a good friend of mine, Angela, who has two teenage children, both of whom are older than Valerie. While the teenagers are more independent, there is still sometimes a need for her to arrange for someone to drive them to school, and to their extra curricula activities when she is unable to do so. This friend also likes to travel. In the past two months, she took two extended trips to Europe. The first trip was to the Scandinavian countries. She was there for three weeks. Her second and more recent trip was to the United Kingdom. She stayed there for two weeks.

Who do you suppose watched after Angela’s two teenage children when she was on her trips to Europe? You guessed it, their Father! He even stayed at her place with the kids, while she was in Europe, so that their school schedule and after school activities would not be interrupted.

Angela told me that she does not feel she could take her trips to Europe if her ex husband was not willing to take care of her teenagers when she is gone. First, she could not afford the expense of an overnight care-taken for several weeks at a time. Second, she feels confident that when they are with their father, they are well cared for. She simply does not have that same confidence in an outsider.

Angela’s ex husband lives in another town. One of my favorite parts of her story is that, at times, when it is the father’s turn to take custody, he will drive into her town and have dinner and spend the night with her and the kids. If Angela needs his help, he will stick around for a few days until she is squared away. Then he will take the kids with him to his home, in the next town over.

What does this mean for Angela’s two teenage children? It means that they are well adjusted, happy, and have a good relationship with both of their parents. Like Valerie, they have been spared of the acrimony that so many children of divorced parents often experience.

Compare and Contrast- Ineffective Co-Parenting

Most people going through a divorce, do not have the same experience as my hairdresser, Mary, or my friend, Angela. They are generally stuck on a regimented schedule and a set place to do the custody exchange. Most could not even share custody without that set structure.  If one of the parents is as much as five minutes late, the other is on the phone with their lawyer. Never mind that the tardiness, of the other parent, may be due to something as realistic as being stuck in traffic, or late getting out of work. The other parent is already imagining the worst. It is not uncommon for parties to move for a court order to be allowed to tape their conversations during the custody exchange.  In the extreme, I have had people argue over the mileage and how far they will have to drive to do the exchange. I recall one situation in which a former client actually goggled the mileage the other parent would have to travel to do the exchange. Said client then accused the other parent of lying about a one mile difference, and how long it would take her to arrive to the agreed upon exchange location.

In these situations, the parties are not emotionally capable of doing the exchange at their respective homes or work, or wherever it is more convenient. They certainly would not stay in one another’s home while the other is out of town. In most of these situation, the parties cannot even stand to be in the same room with one another!

What does this mean for the parties? Simply put, the slightest change in their custody arrangement would have to be discussed between their lawyers.  I have known lawyers to have billed thousands of dollars in a few days, just trying to get their clients to agree on a time and  location to do the exchange. Then, the lawyers have to write up a stipulation and get it filed with the court. More billable hours. The funny thing is that these parties don’t seem to realize or care when they are racking up the costs during the time that they are bickering. Yet, when they get the bill, they are always surprised!

What does this mean for their children? Even if there is a court order prohibiting both parents from speaking negatively about the other, in front the children, the children generally can sense the tension. This affects the children’s emotional well being.

Conclusion

In the good examples, above, of Mary and Angela, both sets of parents have somehow come to realize that even though their marriage did not work out, that they still have to be parents together. They have managed to get through their differences, and work things out in a way that not only is best for their children, but which also accommodates their respective needs and schedules. Not only is this psychologically healthier for all concerned, but also, it saves these parents thousands of dollars in attorneys fees and childcare expenses.

In contrast, people involved in a divorce, who cannot seem to get past their acrimony, constantly complain not only about the other party, but also about paying their attorneys.  Their problems and misfortunes are always someone else’s fault. Perhaps they should take stock and realize that the situation in which they find themselves, is often the result of their own choices.

Unfortunately, in the end, it is their children (and their pocket books) who ultimately suffer for their childish behavior.