Recent Posts in Special Needs Category

By Heidi Bitterman, Esq.

When filing a petition for separation or dissolution of marriage, the concept of estate planning is usually the farthest thing from one's mind.  While the likelihood of death of either spouse during the dissolution process may be remote, the consequences of failing to plan for this event are significant to both parties. What most people do not realize is that, until the entry of judgment of dissolution occurs, the parties retain the status of spouses and are accorded all the rights and privileges of that status as provided by law. 

So, for example, if you had engaged in estate planning with your spouse during marriage, the estate plan remains valid during the dissolution process.  Most, if not all, married couples leave their respective community and separate property interests to the other spouse.  If you were to die before your divorce is final, your assets would still be distributed in accordance with your estate planning documents.

Those who have not engaged in estate planning prior to dissolution are by no means better off for not having planned.  For those who die without a Will or Trust, your estate proceeds by a process called intestacy, which is a set of rules in the Probate Code that dictates to whom your estate will be distributed.  If you die before your divorce is final, the California Probate Code states that all of your community property shall be distributed to your surviving spouse.  As for your separate property, the law provides that your surviving spouse can inherit at least a portion of that too, up to 100% if you have no surviving children, parents or siblings.

The rights of spouses also extend to making decisions for the other spouse during periods of incapacity, specifically in the areas of medical and financial decision making.  Unless designations on the Advance Health Care Directive and Power of Attorney are revoked, or documents are drafted naming someone other than the spouse as the primary agent, your spouse retains the ability to make medical and financial decisions for you should you become incapacitated during the dissolution process.  

Divorce is an emotional and often frustrating process.   Estate planning may be the last thing you want to do during this time.   However, carefully consider the consequences of failing to plan and its effect in light of your changed circumstances.  Creating or updating your estate plan will bring you peace of mind and the satisfaction of knowing that your new wishes will be honored.

Divorce therapy for divorcing couples with children is quite simple, if parents take the well-being of their children seriously, show their commitment through actions vs. mere words, and can let go of needing to be right in order to do what's right for the child.

It rests on the usual consensus between parents that an 18-year-old entering the world/college/work force with the characteristics of Child A has a much better chance for a good life than Child B as described below.

It also rests on a shared belief that a child's personality is built largely upon nature (genetics and temperament) and nurture (parenting in early years, social factors in later years) and that nurture through parenting is much more modifiable than is nature.

Other factors that are pointed out but are not generally known by parents (although usually agreed with when explained) are that a child's well being and sense of security are greatly affected by the cooperative, mutually respectful, and enjoyed relationship between the parents. It is not solely determined by the parents' relationship with the children.

A majority of teenagers, when asked if they had the choice between their parents being nicer to them or more loving towards each other, will pick the latter. The animosity between parents is very painful to their children.

There is ample research from child development studies to support this, not to mention asking each parent the effect that their parents' relationship had on each of them.

Developmental psychologists have gone so far as to say that the cooperative and collaborative relationship between parents has a long-lasting effect on the child's own minds and personality, especially with regard to how his or her emotions and logic work together or fight each other. Some psychologists say that arguing between parents is not as detrimental as arguments that never are clearly and fully resolved. That state of "nothing gets better" or "same old thing again" can cause many children to develop a predisposition to anxiety (that the non-resolution will escalate to something worse) or depression (that mom and dad don't seem to like each other).

Divorce Therapy Made Simple has three steps. Family law attorneys or the court usually direct the couple to attend therapy together.

Step 1: Both parents agree and accept that at age 18, a child with the characteristics of Child A is in a much better position to have a good life than Child B.

Step 2: Both parents agree that how the child is nurtured/parented/raised and how the parents interact with each other have a significant influence on raising a child to become either Child A or Child B and that they have a moral responsibility to do right by their child.

Step 3: Each parent needs to make a compelling and convincing case for what they're asking for (regarding living arrangements, custody, and co-parenting) and how it will result in a Child A rather than a Child B. If they can't make such a case for a request with regard to the children, it will be dismissed by the therapist as irrelevant.

Out of these meetings, actionable and observable behaviors are agreed upon that will positively affect their children. The results of such meetings, either positive or negative regarding the co-parenting skills of the parents, may be given back to the attorneys or court in the form of a written report and/or verbal testimony or deposition.

It is a political trend divorce attorneys in Pasadena have seen brewing for quite some time: divorce reform bills. For the last couple of years, a variety of divorce reform acts have been purposed by politicians and lawmakers across the country. Yet just as this trend has gained momentum, two high-profile divorce bills on the ballots in two very different states have been defeated.

In Montana, Republican lawmaker Tom McGillvray proposed a bill that would require divorcing couples to attend seven meetings with a counselor. McGillvray says divorce is damaging a generation of children and thinks counseling could save marriages. Opponents of the bill, however, believe the bill was overstepping its bounds and interfering with the private lives of voters.

"I don't want you telling me what I can and can't do in my married life," argued Democratic Rep. Edie McClafferty. "I'm sure not going to tell anyone what they can and can't do in their married life. Last time I heard, we lived in a free country, people can make their own decisions.

McGillvray’s bill died on the house floor in a 60-40 vote.

Down south in Mississippi, a very different kind of divorce bill also was shot down. The house said "no, thank you" to a bill that would have given a spouse grounds for divorce if they have been away from an abusive situation for five years or longer. Backers of the bill say the bill would have made it easier for victims of abuse to file for divorce after fleeing an abusive situation from a spouse who woudn’t grant them a divorce. The bill had passed earlier in the Senate but was defeated last Thursday on a vote of 81-39. Mississippi law currently allows an abandoned spouse to file for divorce but doesn’t address when one spouse leaves but is denied a divorce by the other spouse.

When it comes to the needs of children, family law attorneys in Pasadena take interest. No parent likes to have his or her child improperly tracked into lower-performing programs. In Pennsylvania, a district judge has set a trial date for a lawsuit alleging that special education and lower-level academic classes were being disproportionately filled with black students who had been subjected to improper tracking.

Initially, parents filed a class-action lawsuit, arguing on behalf of all black students in Lower Merion School District. However, in a 2009 ruling, Judge Harvey Bartle ruled that a class-action suit was not appropriate due to each case being too individualized.

The Individuals with Disabilities Education Act, which Congress reauthorized in 2004, requires districts to report on whether their special education placements show a disproportionate representation of minorities. Lower Merion's black student population is at about eight percent, whereas special education students in the district are represented at fourteen percent. Although Lower Merion's report to the state includes this fact, it found itself to be within racial disproportionality rules, noting that the disproportion of black students in special education was a result of inappropriate identification of disabilities. In other words, according to the district, it was not a matter of racial or ethnic tracking but misplacement of students in special education programs.

Both the district and lawyers representing the students continue to make their case. The district claims that the plaintiffs are not taking into account their attempts to close the minority achievement gap.

On behalf of the students, Sandra Kerr from the Disability Rights Project said, "We know that within the (school district), there are individuals who care and who want this situation solved. But the (school district) board needs to decisively act to solve this problem."

"The district has acknowledged, through its strategic plan, historical concerns surrounding minority achievement,” the district's statement said. “In response, the district has aggressively sought to take a leadership role in the effort to address minority achievement in the areas of educational programming, hiring, community engagement and staff development."

The court has set a date of Nov. 1 for the trial.

As lawyers in Pasadena can tell you, education is an issue where all parents want their child’s needs to be met. However, many parents are not aware of all the laws that ensure their child is protected. Important legal provisions make educational needs a matter of children’s rights.

For example, many parents are familiar with the Individuals with Disabilities Education Act (IDEA). It is a law ensuring services to children with disabilities throughout the nation. And everyone has heard of the No Child Left Behind Act.

But have you ever heard of the “Williams settlement?”

Here’s a line from the Williams vs. California settlement that a lot of parents interested in family law in Pasadena might find interesting:

“[T]hese thresholds for teacher quality, instructional materials, and school facilities are intended by the Legislature and by the Governor to be a floor, rather than a ceiling, and a beginning, not an end, to the State of California's commitment and effort to ensure that all California school pupils have access to the basic elements of a quality public education.”

On May 17, 2000, a lawsuit was filed against the State of California due to substandard conditions in many California public schools. In August 2004, a settlement was announced. The settlement requires that all students have books and that their schools be clean and safe. It also requires the state to take steps to ensure that students have qualified teachers and that schools deliver these important resources to students.

All public schools in California fall under the provisions of the Williams settlement. A statewide accountability system has been put in place where every school district must now provide a uniform complaint process for complaints regarding insufficient instructional materials, unsafe or unhealthy facility conditions and teacher vacancies.

Budget cuts in California are inevitable, and those who place a premium on quality education are ready to advocate. With the coming budget cuts, the Williams settlement is more pertinent to the rights of children than ever.