Dwyane Wade Waits for Child Custody Ruling

On behalf of Edwards & Associates posted in Father's Rights on Tuesday, January 25, 2011

Dwyane Wade, perhaps best known for his performance on the court for the Miami Heat, has been spending a significant amount of time in a court of law in order to fight for his rights as a father. As both sides in the case made their closing arguments last week, Dwyane Wade now has to play the waiting game. A final ruling in his child custody dispute with his ex-wife is expected within the next 60 days.

Wade and his ex-wife, Siohvaughn, were high school sweethearts and they married in 2002. They have two young boys together, but they separated in 2007. In 2010, their divorce became official, but the issue of child custody has not been decided.

The battle between Dwyane and Siohvaughn has been marked by damaging accusations hurled by both sides. In October, Dwyane Wade appeared in court to refute allegations that he had abused his ex-wife and his children, abused drugs, owned guns or had a sexually transmitted disease. He also testified that his ex-wife had physically attacked him and threw objects at him.

Siohvaughn had argued that Wade was an unfit father because he prioritized his career over taking care of his boys. She has accused Wade of using his money and fame to denigrate her.

In closing arguments, Wade's attorneys repeated their main arguments that Siohvaughn had anger issues and needed psychiatric help. They believe Siohvaughn is attempting to alienate Wade from his children in an attempt to get revenge for the divorce.

While we do not know what the Judge's decision will be, the attorney appointed to represent the interests of the children sided with Dwyane Wade. He believes Wade should have full custody of the boys and that the boys have suffered significantly in the prolonged child custody dispute.

Sources:

Fox Sports, "Wade awaits custody ruling," 1/23/2011

Chicago Tribune, "Closings heard in Dwyane Wade child custody case," Dawn Rhodes, 1/21/2011

Tags: Dwyane Wade, Father's Rights, child custody

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'Deadbeat' parents caught in a debtor's prison - AJC

'Deadbeat' parents caught in a debtor's prison

By Bill Rankin
The Atlanta Journal-Constitution
On any given day, hundreds of Georgians are in jail for failing to pay child support.

Family law attorneys say many of these "deadbeats" are right where they belong. They have been found in willful contempt of court for repeatedly refusing to pay their child support, failing to try to find work or hiding their income and assets.
But many parents are being jailed even though they have no ability to pay, creating modern-day debtor's prisons, according to motions being filed in Georgia courts. The state should provide lawyers to indigent parents for their civil-contempt hearings to ensure due process, the filings say.

Leah Ward Sears, former chief justice of the Georgia Supreme Court, spells out the complexity of the issue.
"There are a lot of kids out there with parents who just don't pay, and for every dollar they're not paying someone else has to pay," Sears said. "Too often it's the taxpayer. They're taxing the court systems that have to process them and taxing the jails that have to house them. They tax the welfare rolls. It also forces extended families -- grandmothers and grandfathers -- to pay."

But it is illegal to incarcerate someone who has no ability to pay, she added. "We don't believe in debtor's prisons in this country, and that's what we're doing here in some cases."

The U.S. Supreme Court will consider the issue inMarch, when it hearsan appeal from a South Carolina man who was jailed for a year for failing to pay child support. South Carolina, like Georgia, is one of a few states nationwide that do not provide lawyers to indigent parents facing contempt hearings for failure to pay support.
The high court's ruling could change the way Georgia's courts handle child-support contempt cases and hit the state's budget.

North Carolina, for example, has been providing attorneys in child-support cases since a 1993 court ruling required the state to do so. Last year, North Carolina paid more than $3 million to appointed lawyers in child-support cases, Wendy Sotolongo, the state's parent representative coordinator, said.

Emotions run extraordinarily high in cases involving custody and support; angry ex-spouses often are all too happy to see the other parent jailed, and judges, weary of excuses from deadbeats, often oblige them.
In Georgia, after finding a parent in contempt, judges set a "purge fee," which is typically below the amount of child support that is owed. If the parent can pay the purge fee, he or she can avoid being sent to jail.
Over the past decade, 3,612 people -- each serving an average of 127 days -- were incarcerated in Gwinnett County for failing to pay child support, according to jail records.

"We've seen some who've been jailed come up with $15,000 to $20,000 in a couple of days," Sheriff Butch Conway said. "Some will languish for months and not be able to come up with $100 to $200. Some can't pay it but, sadly, I think some do have the money but just don't want to pay."

Randy Miller, a war veteran from Marietta, sits in a Floyd County jail facing a $3,000 purge fee he can't pay, he said in a statement provided to The Atlanta Journal-Constitution by his lawyers.

When Miller, 39, lost his job as an AT&T service technician in 2009, he struggled to keep up with his $452-a-month child support payments for his 16-year-old daughter. He eventually saw his home go into foreclosure and wound up with only 39 cents in the bank, according to court records. In November, he was jailed for four months for failing to pay an estimated $4,400 in child support.

"My biggest concern right now is finding some work," Miller said, noting his child-support bills are growing because of his incarceration.

Miller said he may try to re-enlist in the military when he gets out of jail as a way to secure a more consistent income, but worries he might be too old.

His lawyer, Sarah Geraghty of the Southern Center for Human Rights in Atlanta, said everyone agrees that parents must support their children. "But we can't go around locking up indigent parents because they are too poor to pay the full amount owed."

Doug Slade, an attorney who represents the state Office of Child Support Services and asked Miller be found in contempt, has said Miller is incarcerated for failing to comply with a court order.

"Our job is to seek to take care of the best interests of the child," he said. "It seems people are often more concerned about the parent who has the ability to work but is not and consequently is not taking care of the child."

Last year, the Southern Center filed Open Records Act requests with county sheriffs to find out how many parents were jailed statewide for failing to pay court-ordered child support. The center, which heard back from 135 of the state's 159 counties, found that 526 parents were incarcerated statewide.

"The people we see in jail are not wealthy 'deadbeat' dads," Geraghty said. "They are often working people who have lost jobs and become totally indigent."

In 2009, Geraghty obtained the release of Frank Hatley, a South Georgia man who had been jailed for more than a year for being too poor to pay child support -- even though the judge and the state attorney who brought the contempt charge knew Hatley was not the boy's father. Hatley should have been provided counsel at his initial contempt hearing, Geraghty said.

On March 23, the U.S. Supreme Court will hear the case involving Michael Turner, who was jailed for a year after being found in contempt for not paying more than $5,700 in his child-support for his daughter. Turner told the judge he had been addicted to drugs, and he broke his back when he finally got a job. "Now I'm off the dope and everything," he said. "I just hope that you give me a chance. ... I know I done wrong."

In its ruling last year, the South Carolina Supreme Court distinguished between civil contempt child-support jailings, whose purpose is to coerce compliance with court orders, and criminal contempt sanctions, which are punishment for disobedience and disrespect. A parent such as Turner "hold[s] the keys to his cell because he may end the imprisonment and purge himself of the sentence at any time by doing the act he had previously refused to do," the court said.

Turner, now represented pro bono by the a number of lawyers, including former U.S. Solicitor General Seth Waxman, wants the U.S. Supreme Court to overturn the South Carolina court's ruling.
When a parent lacks the ability to pay, jailing the parent is merely punitive -- and illegal -- Turner's lawyers said in court filings. The state has no interest in maintaining "a de facto debtors' prison for [parents] who genuinely cannot pay. ... As a matter of fundamental fairness, Turner should have been afforded the assistance of counsel to show that he could not [pay]."

This month, the U.S. Justice Department disagreed, telling the high court that Turner did not have a categorical right to counsel. But the agency's brief said the South Carolina decision should be overturned because parents need to be given a more meaningful opportunity to show they can't pay. Such procedures could include requiring parents to complete an understandable form disclosing their personal finances, the Justice Department said.

Seth Harp, who chairs the Georgia Child Support Guidelines Commission, said a U.S. Supreme Court ruling requiring lawyers for indigent parents "could devastate our system."

"We don't pay enough now for the defense of our criminals," said Harp, a former state legislator. "If there's no money for lawyers in child-support cases, then the possible result could be the end of the threat of jail time. And there are many people who deserve to go to jail."

Harp acknowledged that the recession has resulted in increased numbers of parents being hauled into court facing contempt. "I recognize many have lost their jobs, literally exhausted all their efforts to find work, exhausted their employment benefits," he said. "And I also know courts will often err heavily against the parent who's being brought into court. The philosophy is, 'We've got to take care of the children.'"

Lottery Winner may Have to Share Jackpot With Separated Spouse

On behalf of Edwards & Associates posted in Property Division on Thursday, January 20, 2011

In a stunning combination of good luck and bad luck, a 29-year-old Idaho woman won a share of the Mega Millions jackpot earlier this month. She was one of two winners in the $380 million drawing, and could take in as much as $90 million after taxes if she elects to receive a lump sum payment. That is the good luck portion of her story.

The bad luck is that she is still legally married to her estranged husband. Several news sources have reported that the two have had several encounters with law enforcement, including a 2003 incident when both spouses were arrested for battery and jailed. The two were married in 2001 and separated a few years later. However, there is no record of divorce and they are still legally married despite their separation.

It is significant that she lives in Idaho, which is one of the nation's seven community property states. In a community property state like Idaho, a spouse is entitled to half of all marital property, including property acquired after a separation. This means that the lottery winner's husband may be entitled to up to half of the winnings.

Thankfully, Georgia is a much safer state for lottery winners who have not bothered to divorce their spouses after years of separation. Instead of being a community property state, Georgia is an equitable distribution state. This means a family law judge will consider a variety of factors including the relative contributions of spouses to the marriage. Property division in Georgia may be more complex than property division in a community property state, but it is also more just in many situations.

Source: USA Today, "Lottery winner may have to split it with estranged husband," Douglas Stanglin, 1/18/2011

Tags: community property, divorce, equitable distribution, property division, separation

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Nas' Child Support and Alimony Payments Cut

On behalf of Edwards & Associates posted in Divorce on Wednesday, January 12, 2011

Nasir bin Olu Dara Jones, better known as the actor and rapper Nas, has won an important victory in court related to his spousal and child support payments.

Nas married singer Kelis in 2005 after a two-year relationship. In April 2009, Kelis filed for divorce from Nas while she was 7 months pregnant. In July 2009, Kelis gave birth to their son and a judge ordered Nas to pay $40,000 per month in child and spousal support that same month. In December 2009, a judge ordered the payments increased to $51,000 per month.

Nas had trouble making his monthly payments and at one point faced a contempt charge after owing $350,000 in back support. As we have discussed previously in this blog, failing to pay child support and alimony can result in a contempt charge and many fathers are sent to jail as a result. When falling behind in child support, ignoring past due support is often a mistake that has serious repercussions.

When a non-custodial parent loses his or her income, child support payments do not automatically decrease. In fact, the payments will remain the same unless the parent takes the important step of informing the court. Often, the best option for fathers falling behind in their payments is to bring a motion to modify support payments.

Nas successfully convinced a family court that the bad economy has hurt his ability to earn the same amount of income as he could earn before. This month, a family law judge reduced his payments to $20,000 a month in child support and $5,000 each month in spousal support. Because of his successful motion to modify support payments, Nas will be paying less than half of what he had been required to pay in the past.

Source: MTV.com, "Nas' Child, Spousal Support To Kelis Slashed In Half," Mawuse Ziegbe, 1/7/2011

Tags: Nas, alimony, child support, divorce, modification

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This blog is a great tool for keeping our readers informed about developments in family law. The field of family law has seen significant change over the past few decades. Grandparent visitation and child custody is an area of the law that is presently going through significant changes. A recent case from South Dakota underscores a trend in how the law treats grandparents seeking custody of their grandchildren.

Grandparent child custody has been around for a long time. However, grandparents are typically only given child custody when the parents are unavailable or unfit to be parents. South Dakota passed a law that gave grandparents child custody in certain circumstances even when the parents were not declared to be unfit.

The recent case stems from a request by grandparents to have child custody over their 4-year-old granddaughter after her parents broke up and endured substance abuse and mental health problems. They lost at trial when a judge declared the state law unconstitutional because the U.S. Constitution requires that the parents be found unfit before custody could be awarded to grandparents. They appealed that ruling to the state Supreme Court and won.

The state Supreme Court said the law was constitutional because the state law took the fitness of parents into account, and gave special consideration to fit parents. Additionally, the law presumed that children's interests are best served by being in the custody and care of their parents, unless their parents are unfit or other extraordinary circumstances exist.

The U.S. Supreme Court has said that a parent's relationship with his or her child is protected by the U.S. Constitution and parents have a fundamental right to raise their children. However, the South Dakota Supreme Court noted that the U.S. Supreme Court has never specifically required that a parent be found unfit before child custody could be given to a grandparent or family member.

Source: CBS News, "S.D. High Court Backs Grandparent Child Custody," 12/31/2010

Tags: best interest of the child, child custody, grandparent custody, grandparent visitation

Divorce Financial Planning in a Tough Economy

On behalf of Edwards & Associates posted in Divorce on Tuesday, January 4, 2011

In these tough economic times, many couples who have emotionally separated and would like to divorce are not doing so because they feel they cannot afford it. After all, retirement savings, incomes and the value of homes has fallen sharply over the last few years while the debt burden of many families has increased.

However, there are options available to people in tough financial situations who would like to afford a divorce. A team of people specializing in the financial planning aspects of divorce can help you plan for the financial impacts of a divorce. All that is needed to afford the divorce you need is some planning and some cooperation with your spouse and divorce specialists. Here are some common considerations for many families going through divorce.

Understanding the financial situation of your family is very important. The family home should be appraised and all assets and debts should be totaled up. If you suspect your spouse is concealing assets, experienced divorce attorneys team up with a forensic accountant to find hidden assets.

Getting sound legal advice is important. In addition, tax and financial advice will help you determine the best way to structure alimony payments, dividing the equity in the marital home and dividing retirement account distributions. Divorce attorneys often work together with financial planners and accountants who specialize in divorce.

Consider selling the house. It is often the case that one spouse would like to keep the family home, especially if children are involved. In many cases, one spouse alone would not be able to afford the upkeep on the home. Although the marital home was affordable on two incomes, it may quickly become unaffordable on only one spouse's income.

Planning for college tuition should not be overlooked. Many children of divorce have more difficulty affording college education and studies have shown divorced parents, on average, contribute less to their children's college tuition than couples who stay together. This is because divorced parents often overlook a college education when breaking up.

Additionally, consider collaborative divorce and mediation. Many of the best divorce settlements come in cases that do not involve a judge. Collaborative divorce is a non-adversarial process. Unlike a court case, which has defined winners and losers, a collaborative divorce works to achieve the best possible results for both spouses.

Source: Reuters, "How to afford that divorce you both want," Linda Stern, 12/6/2010

Tags: collaborative divorce, divorce, financial planning, forensic accountant, property division

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