My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.
Thursday, August 12, 2010
As time moves on
Another common enough feature of those days was getting the house transferred into the wife’s sole name. This would give rise to a lot of bitterness unless there was a significant asset base. Eventually, however, with time, experience and some policy decisions (precedents) on these matters, it became extremely rare for the house to be taken off one spouse and given to another unless by agreement or in exchange for being bought out. For a woman to buy out a man she generally had to be able to get a loan and this in turn meant that women had to work outside the home in the majority of such cases.
Children generally resided with Mum and saw Dad periodically. It was very rare for Dads to get sole custody and access was parcelled out like hen’s teeth. Joint custody was rare. Most women fought like tigers to get sole custody of their children and the idea of shared parenting post separation was very uncommon . If you suggested to a woman that it was more in her long term interests and those of her children to concede equal parenting time and responsibility to the Dad she would have thought you were working against her interests. Everything was approached on the basis of sides. That is essentially what the adversarial system is all about. As we moved into the boom, it became commonplace for the family home to be sold. This was for a number of reasons, women were working and so could get mortgages in their own right, it was perceived as unfair that a man who may have been the principal earner in a marriage would walk away with nothing to start again. Increasingly, it was regarded as important that the children would see their Fathers living in reasonable surroundings. As more and more Fathers sought overnight access, it was clear that they would have to have a reasonable standard of accommodation. Now, in the middle or height of a recession (who knows?) property is not selling and what does sell sometimes will not clear the mortgage or will clear it but not leave enough to buy on. The impact of this on the orders being made is only being assessed and its long term effects are unknown.
Maybe we now have to go back to the unfortunate agreement or order to sell at a future date. However, we may do so but for entirely new reason. Indeed, more and more of the settlements I am entering into these days have that ingredient but unlike the 90s, sometimes, it is now the husband who is remaining in the family home and the wife moving on. Economic changes in the employment prospects for women during the boom have effectively given many women a wider range of options. Now more women are moving out of the home than ever before. This is particularly the case if the children are largely grown. As a result, the option to sell at some future date is made largely in the hopes of a property market rally than because of a fear of moving on after the marriage. Such decisions can be viewed by the couple as making economic sense and tend to be accepted with good grace by both parties.
Spousal support, in my experience, is largely a thing of the past except in some limited circumstances and while Judges don’t normally articulate that a woman should look for a job, their judgements make it a reality. Recently, I have started to settle cases on the basis of a built in period of support post separation to enable a wife who wishes to work but has not been doing so for a while to get back into the market without any undue economic hardship. This period could also allow a spouse to retrain or engage in a long deferred educational pursuit. Such periods could be for one year or several but they are of their nature of a limited duration. It is my experience that a husband in such circumstances will not resent the payment in anything like the same degree as an open ended payment. When considering such settlements it is important to take into account that spousal support is taxable in the hands of the spouse whereas the person paying gets relief on the payment. It is often built into such agreements that the paying spouse will not seek to reduce the spousal support during this period on the basis of the other spouse’s earnings alone. This enables a dependent or semi-dependent spouse to get on his/her feet without incurring a penalty and further acts as an incentive to earn. Frequently, we look on the 4 year qualification period between separation and divorce as onerous and unnecessary, however, we could look at that period as a hiatus period enabling us to plan effectively for the divorce. I know that is not what the legislators intended and it was meant as a deterrent to leaving our marriages rather than a planning period to exit more efficiently.
As courts get used to dealing with marital breakdown and as it becomes a reality that everyone knows someone who has a divorce or separation, then the way we manage these cases as a nation changes. Our increasing mobility as a nation affects this situation also. The option is now there for many people to get a divorce in another jurisdiction where the rules or practice might suit their purposes a little better. This is something we need to keep constantly in mind when dealing with such matters. Since Separation and Divorce were legalised the face of Ireland has changed and we are no longer the wall to wall Caucasian nation we once were and this has impacted on our cultural attitudes which in turn affects our approach to such matters.
Child support is, of course, another matter entirely. Both spouses are expected to contribute to the best of their ability for the support and upkeep of their children. Such contributions are generally estimated in line with a person’s earnings. The more you earn, the more you will be expected to contribute. Child support is not taxable in the hands of the person receiving it. Equally it is not tax deductable in the hands of the person paying. Unlike the concept of spousal support which has connotations of “foreverness” and can, accordingly, bring on a panic attack, child support has a identifiable time frame which continues up to 23 if the child is in full time education or after they complete secondary and start to work. Most parents do not resent contributing to their children’s upbringing but it is still amazing the number who have visions of their spouse having a whale of a time on the child support! Whether this is just paranoia or simply a lack of understanding as to how wonderful children are at spending all your money, I don’t know.
Joint custody is now the norm in family law cases. This does not mean that the children’s time is divided in two and each parent is given precisely half. Children have to go to school, see their friends, play matches, engage in activities, do homework, spend time with grandparents and so forth and in short be allowed to have a life. Cooperating parents can generally manage to ensure that they see both parents and still get to do those things and it obviously helps that the parents live reasonably close to one another to enable such cooperation. However, parents who live in different counties or at good distances from one another will not be able to manage these things so easily but again with open mindedness problems can be solved. We now know that it is damaging to children and their development if they do not have a proper and healthy relationship with both parents post separation or divorce. Courts have completely absorbed this message and with very few exceptions will award joint custody and give as much access as possible and practical to the non residential parent. It is still a balancing act though between the children’s needs and the parental circumstances. Judges have a limited time to go into this in any depth. Judges don’t know your children and will not meet them. It makes absolutely no sense to place such matters in the hands of a Judge and no one would be quicker to acknowledge this than an experienced family law Judge. A properly worked out parenting plan can save acres of heartache and frustration later for both you and your children. It is a fact that children love to know what is happening from week to week and will work well with carefully planned access schedules.
In the early 90s if there were child issues it was the norm to have the children assessed by a child psychologist who would then report to the court and make recommendations. While this still happens, we are less inclined to rush into this now as a “cure all”. We have learned in the intervening years how invasive such examinations can be for many children and we move at a much slower pace into this arena. Children don’t want to be asked their views on where they should live or how often they want to see the other parent. It is unfair and unreasonable to ask children to comment on such matters. Children invariably love both parents. Of course children do have views and concerns and these should be listened to but they should not be asked to make decisions that are outside their competency as children. In the past, it was commonplace for children to be asked such questions and for those views to be passed to the Judge who was, naturally influenced by them not to mention the unspeakable agony caused to the parent who had to read and listen to those views expressed in this manner. The practice was nothing short of barbaric and one can only imagine how such children must have suffered when and if they realised how their views had been reported and the effect that they had. There are still situations where the intervention of a child psychologist is required and in fairness most child psychologists have also got stronger in their approach to the courts now and will not allow themselves to be manipulated into the old style reports quite so easily. As time moves on we all gain experience and insight, professionals and public alike. Now we are aware that an experienced mediator will help us in most cases to deal with all but the most intractable of parenting plans and issues.