Hi,

I need this answer fast, by 7:30am Eastern time Tues jan 14th. Thats
when our ESP is.  I dont know if we will resolve our issues, and reach
an agreement though, so I still welcome answers and comments later
than just this date.

I will add a TIP up to $100 for a fast and thorough answer.  I will
Probably tip $50, but if you really do a great and thorough job, you
could possibly expect $100, assuming I have the answer by the 7:30am
Tues Jan 14th ESP date deadline.

I will be checking in to monitor progress and requests for
clarification several times tonight / tomarrow morning.  I may even
get inet access from court tomarrow during the day / lunch break.

I live in New Jersey.  I am the father of a precious 3 yr old
daughter.
Married 6 years, many periods of seperation.

My intention of this question is to discover issues that could be
important to me, during and after the ESP. (early settlement panel).
this is very important. I want to address every last conceivable
detail, to prevent disagreements down the road, and to set
expectations, and even put penalties in the agreement if one party
fails to comply - is that last part possible???  and who pays to
enforce, and loser pays attorneys fee? extra parenting time , as well
as financial penalties ?

I also want to know how enforceable these issues / agreement are.
Also how much money it will cost to enforce, somehting. (roughly
potential, and estimated) dont spend too much time on.

What sort of things should be put into this "agreement."

i have attorney, but he has seemed to not share what he knows about
these issues, or just doesnt know.  he does serve a purpose, but I
need more info, or to give him leads on this stuff.  I cant expect him
to know everything right?

As I understand it, my wife and I, and our attorneys will meet at ESP,
try to hash out an agreement, and then goto a judge and get divorced.

I am VERY concerned that I should speak now, or forever hold my peace
regarding this "agreement".

examples of some things to discuss:

who pays for phone calls? I have read on internet, mothers refuse
children to call their father, because the long distance calls. things
like that. arguign over this.  I would like everything spelled out.
especially assume things are sort of cool, but at least semi
reasonable relations now.  and this is not garanteed in the future. ex
spouses could not get along at all, and become cruel.  I could never
see me do this, but I am concerned she might break laws, and ignore
judges orders, not allow visitation, manipulate every law, and try to
get me to pay for it!

She is currntly making about 30k and getting 100-200 a week under
table in a seperate OT check from working overtime, non taxable, from
her lawfirm that she works for.

I make about 45-58k, currently on the high side of that #.

I have been granted joint legal custody, she has primary physical
custody, at least ruled at the motion hearing.  I would like to take
my daughter out for McDonalds once a week, and possibly have 48 hrs
parenting time (2 days) during the week, if I am unemployed, rather
than have her goto daycare those days.
daycare is $650 per month total.

I think she is eligable for NJ family care, based on her income, or at
least with a small contribution to it.  I dont have health insurance
for me.  She has for wife.  her to put daughter under her plan could
be $300 extra a mo.

potential issues are:

Legal custody issues

religion - daughter was raised christian for 3 yrs, and now wife wants
her to be catholic. what are arguments for me for best interests of
daughter? Daughter was baptised / dedicated at christian church.  We
were in agreement.  Now she has told me she didnt / doesnt want that.
schooling - I prefer public or christian school, not catholic. what
can I do? she has physical custody.  I dont. My understanding is that
I basically have no say in how daughter raised. I cantforce wife to
send her to certain school?  what about costs? I dont want to pay
100%? I would prefer it come out of child support, or I pay a fair
portion.
discipline ? - how has this been handled? I would prefer a verbal
warning / age appropriate time out / "light tap to get the attention
or whatever", vs almost no discipline. - again we were in agreement
about this, and we both participated, now she has "no comment" when
asked about this.
day care - selection
doctors - selection
medical treatment - God forbid daughter might need some, can I be
notified, also if something serious, what imput do i have for other
forms of treatment?
how might that affect visitation and costs?

Visitation issues

holidays
parties
daycare / school functions
transportation costs and time shared


chaild support
daycare income ratio
medical insurance
medical expenses: unreimbursed medical ratio (copay) etc

counsel fees - she already awarded 1500 out of 2500 for her

bank accounts - she is trying to hide a few. she had total 2000 when
seprated, now she probably spent it. can I get some of that?
I didnt have any in my account when we seperated (I was unemployed,
and she refused to contribute to household expenses)

tax issues: claim daughter as dependant.

who gets physical custody daughter in case of death of wife?  me? or
can she specify who in a will?  can that be in the ESP / agreement?

what if she remarries, and gets divorced again... can I lose parenting
time to the step dad, how will the pie slices of parenting time and
COSTS be devided??
Can We address that in the agreement?

what is binding in the agreement?
what is not binding or enforceable?

---

Clarification of Question by markp-ga on 13 Jan 2003 19:07 PST

What about extra curricular activities? who pays for, and How can I
get daughter to take music lessons if wife doesnt want her to, or
doesnt want to pay? why should I shoulder all the financial load of
that activity?
what good is joint legal custody? 

how can I get joint physical custody?  - is this possible in NJ? in
rare cases?

---

Clarification of Question by markp-ga on 13 Jan 2003 19:13 PST

also, what is the downside if we dont reach an agreement tomarrow, Jan
14th 2003? How expensive / complicated / financially / emotionally
draining could this get? are there any studies on this? financially
speaking? better to cut losses now, rather than get what I want?
opinions? comments?

Can a good arguement be put forth that she is refusing to come to a
reasonable agreement / she is being unreasonable, and therefore should
pay for my court costs from now on? or some portion? how can I prove
this behavior to a judge?
of course her attorney doesnt want to settle... how can I document her
unreasonableness for a judge to look at later on?

any advice on getting one party to pay for the other parties attorney
/ legal costs? (excluding decision based on income, I make more than
her).

something creative? seal an envelope with a proposed agreement, and if
it is similar to what the judge would rule, then she pays my fees plus
hers?

come on: I know there are lots of attorneys out there... lets here
what you have to say.

Thank you.

---

Clarification of Question by markp-ga on 13 Jan 2003 20:24 PST

I spent about $200 on Christmas gifts for my daughter.
As far as I know, gifts dont count towards child support.
I sort of feel robbed that I dont get "credit" for that $200.

Can we write someting into the support agreement about gifts counting
towards child support / or negotiate that somehow?
It is not inconceivable to easily spend $500 on gifts per year on my
income.

Has anyone heard of a creative way to handle this? or using this as a
tradeoff or bargaining chip?

---

Clarification of Question by markp-ga on 13 Jan 2003 20:41 PST

to: tutuzdad

I am willing to break this question up, into smaller more bite sized
questions if that will help. Most importantly, I need to know what
type of things should go in this agreement to benefit me. If you would
like I can post this as a new question, and you are free to answer.
$20 good? or should I break up more? how much to break up?

the part about my attorney, well, I threw that in there, in case he
ever saw the question :) I was trying to be nice. I dont disagree with
you.
I cant / dont want to get rid of him. you are just as much taking your
chances with a new one, the expense, the frustration, etc not worth it
now.  However, I do expect good results from him, and if I am
disappointed, and have to go back to court, I might be compelled to
find another.

---

Clarification of Question by markp-ga on 13 Jan 2003 22:12 PST

serenate, thank you for your comments. 
Thank you for clarifying the esp.  that was pretty much my
understanding before.  you are very knowledable for not being an
attorney :)

very specifically, I am looking for advice or suggestions on what to
include in the divorce decree? / "agreement" that wife and I sign off
on, and bring to the judge, in order to get a divorce. what things
typically cause parents to fight down the road? I want to address
those things now, to prevent fighting / limit disagreement down the
road.

keywords parenting, parenting rights, visitation, child custody,
father father's rights, parents rights, support, courts, attorneys,
best interest of the child,

---

Clarification of Question by markp-ga on 14 Jan 2003 05:28 PST

thank you all, I will get back to you later.

---

Request for Question Clarification by expertlaw-ga on 16 Jan 2003 22:01 PST

Dear  markp,

To maximize the benefit of this service, you may wish to close out
your open questions and post new inquiries based upon your present
needs.

---

Clarification of Question by markp-ga on 24 Jan 2003 18:58 PST

Thanks to all. good comments. good knowledge kb.

We settled and reached an agreement. Unfortunately I forgot to include
a few things, like if she dies, who gets custody. Our attorneys
conveniently forgot to address holidays.  I had to bring it up at last
minute. what a waste of money. Thank you all again.

I may look for some answers regarding attorneys, or post a question. 

I may choose to sue a previous attorney for not dismissing a previous
child support order in another county. She told me it was not possible
to dismiss it when I asked 8 months ago.

Dear markp-ga:

I began taking an honest stab at your question but really, it is so
complex that there is absolutely nothing productive to be gained by
quizzing an internet forum about the future of your family. I do not
mean this in a derogatory way either as I can personally sympathize
with your current circumstances.

Your comment: "i have attorney, but he has seemed to not share what he
knows about these issues, or just doesnt know.  he does serve a
purpose, but I
need more info, or to give him leads on this stuff.  I cant expect him
to know everything right? ", concerned me so that I abandoned the
question altogether. The short answer to this question is YOU BET! He
should know EVERYTHING he is supposed to know about this issue. If he
doesn't, and you already know that, then YOU will have ineffective
counsel going into this thing. You can rest assured that your spouse's
attorney will arrive fully prepared to do battle (or you should at
least assume that).

My best advice to you at this late date, for your own sake, is save
your $106 and your $100 tip and go get a fast second legal opinion, or
fire your attorney and seek to have the ESP postposed until you can
obtain a competent attorney. One of you in this hearing who doesn't
know what to expect is ok, as long as that one guy isn't your
attorney.

Good luck;
tutuzdad-ga

ok I broke up the question, 2 are listed now. basically same title,
should be easy to find. I have included the question #, and header
info.


Question        
 
Subject: Divorce / Family Law: suggestions to take to ESP (Bite sized
1) - agreement doc
Category: Relationships and Society > Law 
Asked by: markp-ga 
List Price: $20.00  Posted: 13 Jan 2003 20:51 PST 
Expires: 12 Feb 2003 20:51 PST 
Question ID: 142364 
 



Question        
 
Subject: Divorce / Family Law: sgstns for ESP (Bite sized 2) - how to
get them to pay
Category: Relationships and Society > Law 
Asked by: markp-ga 
List Price: $15.00  Posted: 13 Jan 2003 20:58 PST 
Expires: 12 Feb 2003 20:58 PST 
Question ID: 142367

Hello, Mark!

I am not an attorney, and am not licensed to practice law in the State
of New Jersey, but here is some information for you to consider.

The Settlement Panel is designed to help with financial issues such as
alimony, child support, property division, and counsel fees only, and
not will not consider issues of custody or visitation.

So, as you can see, there will be some questions you have which will
not be addressed and cannot be answered before tomorrow's Panel.

As a result of hearing both your and your spouse's positions, the
Panel will make a recommendation as to what it feels a fair settlement
of your matter is; and if you and your spouse agree, you will be able
to conclude your divorce at that time.

If either you or your spouse do not agree and you are not able to
settle the case, then the case will be listed for trial at the next
available trial date, which will probably be several months away.

The fact that a trial date may be set does not necessarily mean that
it will ever go to trial; the matters of concern can usually be
hammered out, an agreement reached prior to that time, the trial date
cancelled and the agreement presented to the judge with the Decree of
Divorce.

This information is from the New Jersey Statutes, Title 9 (Children),
Title 37 (Marriages), Title 2A Chapter 34 (Divorce etc.), and, Court
Rules Part 5,
 and Child Support Guidelines.

In addition, Divorce Net has some excellent general information for
you to consider.

Take a look at: 
http://www.divorcenet.com/nj/nj.html

On the right are a set of articles to help guide you through many of
the concerns you have listed above.

The bottom line is this: There are a list of guidelines upon which
decisions can be made by the Court if you and your spouse cannot come
to agreement on those issues.

The more agreement you can reach without forcing the court's
consideration of the matter, the better you will both be. As to
attorney fees, that can be worked out as well as to who pays which
fees, etc.

Obviously, if you can't come to any agreements, all and each of your
concerns will be determined by the court based on set criteria.

Good luck tomorrow, and I hope for each of your sakes that you can
work out the terms of the agreement and stay friendly enough for your
daughter's sake.

Serenata

Hi again, Mark ~

I tried to address your questions and concerns here.

You said:

"who pays for phone calls? I have read on internet, mothers refuse
children to call their father, because the long distance calls. things
like that. arguign over this.  I would like everything spelled out.
especially assume things are sort of cool, but at least semi
reasonable relations now.  and this is not garanteed in the future. ex
spouses could not get along at all, and become cruel.  I could never
see me do this, but I am concerned she might break laws, and ignore
judges orders, not allow visitation, manipulate every law, and try to
get me to pay for it!

Recommendation:

Spell everything about financial out in your ESP, and ultimately, your
divorce decree and settlement agreement

And a caveat -

There is a very real possibility she may not uphold her end of any
agreement, it happens. Then you have to go to court to uphold it and
try to enforce it. I say "try to enforce it", because despite even the
best efforts, sometimes it just can't be done.

The judge may order her to pay a dollar amount for her share of a
medical payment. That doesn't mean she will.

Are you prepared to pay the attorney fees you may be forced to pay to
enforce an agreement against her?? Sure, you can even stipulate that
the prevailing party's attorney fees will be paid by the other party.
But -- if she doesn't pay the fees, you will still be the one
responsible for payment to your attorney. So, enforcing the agreement,
no matter how well prepared may not bring you the results you feel it
should. It's a fact of life, and it happens that way.

==========================

You said:

"I would like to take my daughter out for McDonalds once a week, and
possibly have 48 hrs parenting time (2 days) during the week, if I am
unemployed, rather than have her goto daycare those days. daycare is
$650 per month total."

Recommendation:

You can specifically spell out the days and hours you have visitation.
You can list the holidays, and often they alternate. For instance,
Thanksgiving to Mom and Christmas to Dad one year, and the opposite
next year, often designated by even and odd years.

You can agree that neither of you will take your daughter out of the
state without the other's permission, and you will not reside with
your daughter outside the state.

With regard to health insurance - The costs can be negotiated. Very
often with both parties carrying your daughter on their policies or
splitting the cost to add her to the best health insurance of either
spouse. That's equitable.

===============

You asked:

"Religion - daughter was raised christian for 3 yrs, and now wife
wants her to be catholic. what are arguments for me for best interests
of daughter? Daughter was baptised / dedicated at christian church. 
We were in agreement.  Now she has told me she didnt / doesnt want
that. schooling - I prefer public or christian school, not catholic.
what can I do? she has physical custody.  I dont. My understanding is
that I basically have no say in how daughter raised. I cant force wife
to
send her to certain school?  what about costs? I dont want to pay
100%? I would prefer it come out of child support, or I pay a fair
portion."

The principal custodian of the child usually gets the say on religious
issues. If you are concerned, work out your agreement. As for
education, make the provisions for equitable payment if it's agreed on
a private school as opposed to public education. That's a concern, so
voice it and work it out. Both sides will have to compromise in some
areas, this may be one you can negotiate. Including whether or not
those costs come out of the child support payments.

=========================

You asked about:

"discipline ? - how has this been handled? I would prefer a verbal
warning / age appropriate time out / "light tap to get the attention
or whatever", vs almost no discipline. - again we were in agreement
about this, and we both participated, now she has "no comment" when
asked about this."

Perhaps her "no comment" at this point is because she feels you are
now questioning her suitability to be the custodial parent? There are
some areas where you are going to either trust she is doing the best
at the moment and under the circumstances, or you are going to have to
fight for custody yourself.

What works now may not work in two years, or even in two weeks. Do you
really want to get this technical? And then have to change the
agreement if circumstances change?
 
You asked about:

"day care - selection 
doctors - selection 
medical treatment - God forbid daughter might need some, can I be
notified, also if something serious, what imput do i have for other
forms of treatment? how might that affect visitation and costs?"

Recommendation:

An agreement to notify you is not out of order. Trying to enforce an
agreement to consult with you on these decisions would be a bit
taxing, and not always fair, and perhaps not even possible in case of
emergency. You married this woman, she is the mother of your daughter,
do you really feel that her decision making capabilities can't decide
what would be the best day care and doctor for her?

So far as medical treatment goes, an equitable split in the costs
after insurance would be fair.

====================

You asked about:

"counsel fees - she already awarded 1500 out of 2500 for her"

Note:

There will be more attorney fees if you don't come to agreements. It
costs a beaucoup chunk of change for the lawyers to negotiate what you
two could sit down and work out between you.

=========================== 

You asked about:

"bank accounts - she is trying to hide a few. she had total 2000 when
seprated, now she probably spent it. can I get some of that? I didnt
have any in my account when we seperated (I was unemployed, and she
refused to contribute to household expenses)."

Recommendation:

Unless you can prove they exist, don't even bring them up. If you can
prove they exist and she is hiding them, it changes the circumstances
and makes her look less than stellar.

========================

You asked about:

"Tax issues: claim daughter as dependant."

Answer:

The parents need to decide who will claim the child. The parent
relinquishing the dependent should sign a Form 8332, Release of Claim
to Exemption for Child of Divorced or Separated Parents, provide it to
the claiming parent, and thus authorize him or her to claim the
exemption. The claiming parent would then need to attach the Form 8332
to his or her tax return. Please be aware that if you relinquish the
exemption, you are also relinquishing eligibility for the Child Tax
Credit.

If you decide to alternate years for claiming the child, then sign the
forms in advance for those years. Which mean you would each sign the
forms for the years you relinquish the right to the other parent.

In the absence of a Form 8332, the special rule for children of
divorced or separated parents usually gives the dependency exemption
to the custodial parent (the parent who has custody for the larger
part of the year). Under the special rule, the parent who had custody
of the child for the greater partof the year (the custodial parent) is
generally treated as the parent who provided more than half of the
child's support. This parent is usually allowed to claim the exemption
for the child if the other exemption tests are met. However, the
noncustodial parent may be treated as the parent who provided more
than half of the child's support if certain conditions are met.

Source: IRS

Publication 501 Exemption, Standard Deduction
  http://www.irs.gov/formspubs/page/0,,id%3D11547,00.html

Publication 504, Divorced or Separated Individuals 
  http://www.irs.gov/formspubs/page/0,,id%3D11588,00.html

Form 8332, Release of Claim to Exemption for Child of Divorced or
Separated Parents
  http://www.irs.gov/pub/irs-pdf/f8332.pdf

Tax Topic 354, Dependents 
  http://www.irs.gov/taxtopics/page/0,,id%3D16189,00.html

=========================

Question:

"What about extra curricular activities? who pays for, and How can I
get daughter to take music lessons if wife doesnt want her to, or
doesnt want to pay? why should I shoulder all the financial load of
that activity? what good is joint legal custody?"

Opinion and common sense:

Good joint legal custody is almost impossible to achieve unless you
live in the same neighborhood and have an outstandingly friendly
relationship with your wife, and later, ex-wife. It entails a total
50/50 percent time with your daughter. Is this even achievable???

If not, be realistic. If it is achievable, then go for it, a week with
Dad, a week with Mom (or whatever). Otherwise, spell out the
visitation, physical custody, visitation arrangements.
 
I'm sure you've seen this, but New Jersey shared custody worksheet is
online at:
http://www.divorcelawinfo.com/NJ/cal/NJSSCSC.html

Does this appear to be something you two can live with? If you can't
reach a mutual agreement, the Court will award a different type of
custody.

Divorce Source has realistic information on joint legal and physical
custody at:
http://www.divorcesource.com/NJ/info/childcustody.shtml

Is this something that can be worked out? If not, the Court will make
the determination in the best interests of the child.

=============================

You also asked:

"Also, what is the downside if we dont reach an agreement tomarrow,
Jan 14th 2003? How expensive / complicated / financially / emotionally
draining could this get? are there any studies on this? financially
speaking? better to cut losses now, rather than get what I want?
opinions? comments?"

Only you can answer this question. What you don't agree on or can't
agree on, the next step is to get your lawyers to try to battle it out
and negotiate the settlements; and if there are still quetions, to
proceed to trial and let the judge. I suspect this is somethng neither
you or your wife will find desirable or affordable.

So how much are you wanting to push and how much is she? How much are
you willing to compromise and how much is she? How far apart or close
together are you?

=================================

You asked:

"Can a good arguement be put forth that she is refusing to come to a
reasonable agreement / she is being unreasonable, and therefore should
pay for my court costs from now on? or some portion? how can I prove
this behavior to a judge? of course her attorney doesnt want to
settle... how can I document her unreasonableness for a judge to look
at later on?"

This comes down to interpretation. Her answers and/or stance on what
you want may not appear to be unreasonable; but instead what you are
proposing, because of circumstances may make you look the unreasonable
party.

On what points do you feel she is being unreasonable?

=================================

You asked about gifts:

"I spent about $200 on Christmas gifts for my daughter. As far as I
know, gifts dont count towards child support. I sort of feel robbed
that I dont get "credit" for that $200.
 
Can we write someting into the support agreement about gifts counting
towards child support / or negotiate that somehow?
It is not inconceivable to easily spend $500 on gifts per year on my
income.
 
Has anyone heard of a creative way to handle this? or using this as a
tradeoff or bargaining chip?"

You call it a 'gift' and then want it taken out of child support?
There is no half way point here. A gift is a gift. It doesn't matter
if you buy clothes, shoes, medicine, whatever.

Child support is child support. Pay the amount by check or through the
court. Anything else IS considered a gift and there is no way,
creative or otherwise, around that.

=================================

You asked about custody should your wife die. You can stipulate to the
fact that if your wife dies or is incapacitated you will assume
custody and a new agreement with respect to custody and child support.

Bear in mind that your daughter as a citizen will be entitled to her
own attorney and her own say in the matter if that becomes contested.

===================================

Finally:

"what is binding in the agreement? 
what is not binding or enforceable?"

A settlement agreement in a divorce is as enforceable as any other
contract - with the caveat listed above.

==================================

This doesn't really have to be adversarial. Stating your concerns and
a wish to work things out may help you both to come to common sense
agreements that no Court can argue with.

The only ones who benefit from taking a stand and not bending will be
the attorneys.

Hope this helps you some ...
Serenata

Dear markp-ga,

You are correct that there are some attorneys who answer questions on
this service, but to the best of my knowledge none are licensed in New
Jersey, and all are working in EST (making it less likely that
overnight service will be provided on a multi-part question).

I encourage you to keep the following in mind:

* Parents who reach their own custody and parenting time arrangement
are significantly more likely to be satisfied with that arrangement,
and are significantly more likely to comply with the agreement, than
are parents who rely on a court to decide and impose a custody and
parenting time judgment.

Good luck,

- expertlaw

To round off the excellent information given by those who have already
posted comments - I would echo what tutuzdad-ga says about your
attorney. If you're involved in litigation then this site can be
useful to find out some broad information about the main topics of
your case - but you're very unlikely to find any information that your
attorney doesn't have. You're paying him thousands of dollars to fully
represent your case. If he's not doing that, then sack him. If you
think you've lost out in court because he hasn't, then sue him.

You can honestly expect that your attorney will know (or at least find
out unprompted) all the information and law relevant to your case, and
use his best skills at negotiating and litigating to advance YOUR
case. If he isn't, or even if you're just uncertain, then you have
problems.

PS I don't know what the situation is in the US, but lawyers in
England aren't supposed to give second opinions.