Step Away From the Computer. Facebook posts can be devastating to your divorce or custody case.

Hopefully you already know not to post photos of yourself driving drunk with the kids riding on your lap and steering the car.  But even seemingly harmless posts can cause headaches for you and your attorney. 

Are you claiming that you don’t get to spend enough time with your child?  Well, what if your ex shows up with your Facebook activity showing that during the 2 hours you had your child at the park for “quality time”, you posted or commented eight times and had three notifications that you were playing games?  Does that mean you’re a bad parent?  Nope.  Are you going to lose your kids or your case because it?  Probably not (unless your posting about an upcoming meth deal).  But you will have to pay for the time it takes your attorney to review the information, discuss it with you, and consider if the post or pattern of posts is serious enough to require a response.

Since no one wants to pay an attorney to deal with Facebook posts, here are some tips to make Facebook less hazardous during divorce and custody battles:

1.    Stop posting on Facebook.  It should be a read-only activity until your case is settled.

2.    Change your password, even if you don’t think your ex knows it or could guess it.

3.    Review your privacy settings and make them more restrictive.

4.    If you don’t want to stop posting entirely, then at least ask yourself if you want a judge, your mother, your child’s teacher to read this message before you post it.  No matter how restrictive your privacy settings, it will show up in the hands of your ex at the worst possible moment.

5.    Don’t post any photos of yourself in bars, with new significant others, or doing anything other than wholesome family activities.  If you are out drinking with friends, make sure they know you do not want to be in any pictures.  Period.  Just because you’re not tagged in the photo doesn’t mean that no one can see you and promises that “I’m not going to post this” can be forgotten.  If it’s a group shot of people who don’t get together often, do it in front of a neutral wall, without drinks in your hands, before everyone gets drunk.

6.    Don’t “check-in” at places and remove the location that lists where you are before you post a status. 

7.    Don’t brag about all the stuff you’re buying or trips you’re taking or people you’re seeing.

8.    Don’t discuss your ex or the legal proceedings in any way.  Definitely don’t post any court orders, police reports or custody evaluations online.  Yes, people actually do this.

9.    Don’t friend any new people unless you actually know them in real life.  It could be a fake profile or an old friend of your ex who is trying to gather information.

10. You probably set up your profile a long time ago.  Now would be a good time to go over it carefully to see what you might have written in the “about you” section, pages you might have liked, remove old apps that you gave permission to post to your timeline, etc.

 

Amanda Swanberg, Swanberg Law Offices, St. Paul, MN

swanberglawoffices.com

612-670-9626

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Contemplating divorce? A checklist of things to consider doing.

When you’re just considering divorce:  These are things you can do to be more prepared in case you choose to divorce at some point in the future.  While there are non-divorce related reasons for most of these actions—many married couples have checking and credit accounts in their own names and it’s good to have a detailed record of your valuables for insurance and estate planning purposes—they can still tip off a suspicious spouse that you are considering divorce.  You will need to weigh your need to feel prepared with the possibility that you may tip your hand before you’re ready.  It’s an individual decision that only you can make.

£  Checking Account.  Open a checking account in your name.  If your spouse is aware that you are considering divorce, try to agree with your spouse how you will split the cash in your joint accounts.  If you are still living together, you will need to determine how you will divide household expenses. 

o   If you are worried that your spouse will withdraw/spend all the money in your joint accounts, you may want to consider taking half of the balance and put it in a separate account.  The intent is not to hide it or spend it all, but just to make sure it is available later.  You may want to talk to an attorney about your specific situation before you take this step.

£  Credit Card.  Open a credit card in only your name.   If your spouse is aware that you are considering divorce or if you’re afraid your spouse will max out the cards out of spite, consider closing or freezing joint accounts and working to pay them off with your joint funds or transferring balances to cards that you each hold in your own names. 

£  Cash.  Set aside enough cash to cover two weeks’ worth of expenses.  The intent is not to hide this money, but to have enough to live on should your accounts be frozen.

£  Credit Report.  You should order a free credit report every six months or so to ensure that your spouse hasn’t applied for any more joint credit cards or loans.

£  Safe Deposit Box.  If you have a joint safe-deposit box, make a list of its contents and ask the bank to require both signatures to open the box.

£  PO Box.  Consider opening a PO Box in your name to ensure your spouse cannot access your mail.

£  List of Valuables.  Make a list of the valuable household belongings (jewelry, electronics, vehicles, antiques, other items worth more than $500) including a description, photograph, serial numbers, and copies of title and registration when appropriate. 

£  Passwords.  Change the passwords for your ATM, online bank accounts, email and any other online accounts that your spouse may be able to access.

Once your spouse is aware that you are seriously considering divorce or papers have been served.

£  Complete all the items under “Considering Divorce”

£  Freeze Joint Investments.  As soon as you begin divorce proceedings, freeze all joint investments accounts so that nothing can be withdrawn or loans taken out against them. 

£  Retirement Account.  If your spouse has a retirement account in his/her name, request a copy of the current account statement and documentation on how the plan works.

£  Car Insurance.  Switch your car insurance from a joint policy to a single policy to ensure your rates won’t go up as a result of your spouse’s accidents or tickets.  If you only have one car or if you’re not sure who will end up with each car, you may need to continue the joint insurance until ownership is determined by the court.

£  Life Insurance Beneficiary.  Change the beneficiary on your life insurance policy and any retirement accounts.

£  Powers of Attorney.  Cancel or destroy any powers of attorney that you may have executed which would give your spouse authority over your affairs.

£  Health Care Directive.  Amend your health care directive to remove your spouse or in-laws as agents who would be able to make your health care decisions should you become incapacitated.

£  Keys.  Ask your spouse to return his/her set of keys to your vehicle as well as any keys your spouse may have for your parent’s home or other relatives. 

£  Bills.  If you move out of the house, be sure to have your name removed from any household bills. 

£  Home Security.  Once your spouse has moved out of the home, change the locks, the password to the home security system, the code to the garage door, the code to the voicemail mailbox, the code to the home safe, and hide your spare keys in a different place.

A few things not to do:

£  Home Owners/Renters Insurance.  Even if you move out of the home, be sure to keep your name on any home owners or rental insurance policy to protect your share of the home and/or your belongings that are still in the home.

£  Will.  Do not change your will until after the divorce is final, but get a copy of your current will and start thinking about how you want to change your estate plan.  Make an appointment with an attorney soon after your divorce is final.

£  Utilities.  Do not turn off utilities if your spouse is still living in the house.

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Leaving on a Jet Plane--Children Traveling Internationally With Only One Parent

Traveling internationally with your child can be a wonderful experience.  When only one parent is taking a child on an international trip, there are some a few extra documents you need to have before you leave.  While it can seem cumbersome and frustrating for a parent who is planning an innocent trip, keep in mind that these policies and regulations are in place to protect children from parental abduction. 

Applying For a Passport

The first step is obtaining a passport for your child.  Every person traveling internationally, even an infant, must have a passport.  Information on how to apply for a passport can be found on the U.S. Department of State website  http://travel.state.gov/passport/forms/ds11/ds11_842.html.  In order to obtain a passport for a minor child, both parents must go with their child to apply and sign the DS-11 form in person or must meet one of the following exceptions:

• If both parents consent although only one parent is available to go in person to apply, the applying parent must bring the second parent’s notarized Statement of Consent (Form DS-3053)
• If only one parent is available and the other parent is unable to be located, then Form DS-3053 does allow a parent to explain why he or she was unable to locate the second parent.  When completing the form, provide detailed information to improve your chances of having your application approved.  This includes:
• What attempts have been made to contact the second parent;
• What attempts have been made to contact the family members/friends of the second parent to locate the second parent;
• The last contact and type of contact that was made with the second parent;
• If the other parent was deported and therefore unreachable; and
• If domestic abuse is a factor in why they are unable to locate or contact the other parent for consent (providing documentation is recommended).
• For a parent with sole legal custody, he or she must bring one of the following:
• The minor’s certified U.S. or foreign birth certificate listing only the applying parent’s name;
• Court order granting sole legal custody to the applying parent (make sure the child’s travel isn’t restricted by that order);
• Adoption decree if it lists the applying parent as the sole adoptive parent;
• Court order permitting applying parent to travel with the child;
• Judicial declaration of incompetence of non-applying parent; or
• Death certificate of non-applying parent.

Single Mother, Father’s location unknown

If the single mother is unable to locate the father because his whereabouts are unknown, the mother may petition for custody and obtain a court order stating the language in the Recognition of Parentage and Minn. Stat. § 257.541 regarding the mother having sole custody of the children until custody is determined in a separate proceeding.  Such an order has typically allowed the single mother to apply for the minor’s passport and travel internationally with the child.  It is recommended that you attempt service by mail before filing to demonstrate an effort to notify the other parent.

Second Parent Refuses to Consent

If the consent of the second parent is required, the location of the second parent is known and the second parent will not consent to the international travel with the minor child, the applying parent must make a motion for permission to travel with the child internationally and obtain a passport.  Some relevant factors to consider when bringing or responding to this motion include:

·         Is the destination country a member of the Hague Convention;

·         How effective is the country’s legal system in returning children if they are abducted;

·         How will the parenting time that will be missed be compensated to the second parent;

·         Are the objections raised by the second parent reasonable;

·         Consider the best interests of the child factors as to whether the travel is appropriate;

·         Other risks specific to the destination country;

·         Past/current threats of taking the child permanently to the destination country, or in the alternative lack of threats;

·         Efforts towards relocation by the travelling parent or in the alternative a showing that the travelling parent is settled in the community in the U.S.;

·         Travel history of requesting parent and/or child;

·         Dissatisfaction with life in the U.S.;

·         Whether the travelling parent has documents from immigration; and

·         Compliance with previous court orders.

Documentation Needed at the Time of Travel

At the time of travel, the travelling parent may have to prove custody of the minor child.  It is recommended that the accompanying parent travel with the documents used to obtain a passport.  Where there is an agreement between the parents, the travelling parent should obtain a notarized letter indicating that he or she received consent from the second parent to travel with the minor child internationally.  The letter should contain the dates of departure and arrival as well as the destination.  This letter may be helpful in the event it is requested while travelling.  NOTE:  Some countries, such as Mexico, require the original document.  You may want to have two originals on hand in case one is lost or damaged.  There is no standard form, although there are several samples on the internet.   Finally, parents are encouraged to contact the airline, travel agent prior, or the U.S. Embassy (http://www.usembassy.gov/) in the destination country for any additional travel regulations.

Additional websites that discuss traveling internationally with children

http://travelwithkids.about.com/cs/carplanetips/a/crossborders.htm

http://www.familytravelforum.com/

http://www.travelwithyourkids.com/

http://www.cyberparent.com/trips/border.htm

http://sondur.com/Solo_Parent_Minor.htm

http://www.parenting-weblog.com/50226711/international_travel_with_children.php

Great article on travel health tips for children from the CDC. http://wwwnc.cdc.gov/travel/yellowbook/2010/chapter-7/traveling-with-infants-and-children.aspx

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What happens if we all die together?

Now that you’ve faced the possibility that you may die when your children are young, let’s discuss how you would want your estate handled if your entire family died together.  I know, it’s a horrible thought. During the Estate Planning process you will have to imagine scenarios where all of the people you love and care about die before you in order to determine how their death would affect what you want to have happen to your estate.

I find it helpful to think of these alternate gifts as all the great ways I can use my estate to help the people and causes I care about if I didn’t have to provide for my daughter.  Depending on the size of your estate, you can end up feeling a little bit like Oprah—“YOU get a car and YOU get a car and YOU get a car!”  Or, if your estate is more like mine—“YOU get a bicycle and YOU get a bicycle and YOU get a bicycle!” 

So let your imagination run wild.  Here are some questions to get you thinking:

·         Is there someone you know who could really use a break?  Someone who is always giving of themselves, but could use some financial help?

·         Is there someone who you really believe could do great things in life?  How can you help them achieve their dream?

·         Is there someone who is struggling to pay for an education or a child that you want to see go to college? 

·         Is there a person who helped you get where you are today?  How?  Can you make a gift that would recreate that support for someone else?

·         Were you the recipient of an educational grant or scholarship? 

·         Were you involved in an organization that made a difference in your life?

·         Is there a cause that you believe strongly in?  Is there a person or organization that is doing good work in that area?

·         Would you rather give smaller gifts to many people or larger gifts to one or two?  Do you want to be recognized or give them anonymously?

·         Do you want to create a trust or make a one-time gift?

·         Do you want to put conditions on your gift?

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Choosing a financial guardian

Many people simply name the same person as both personal guardian and property guardian (or Trustee if you have a trust) for their children.  However, you may decide that the person you feel can best raise and nurture your children is not the best choice to manage a large financial portfolio.  Perhaps you want your child’s financial support to be managed conservatively, but the physical guardians are free-spenders. 

When choosing a Trustee, you should select someone whose attitude towards money is similar to yours—or perhaps similar to what you aspire to.  The Trustee should be someone you can trust to follow your instructions and not be tempted to take advantage of their position. 

You can give the Trustee wide latitude as to amount and timing of distributions, or you can create a detailed plan for what, when, and how you want the money distributed.  This is a delicate balance between providing the Trustee the flexibility to provide for your children’s unforeseeable needs and ensuring that your primary goals are met (e.g., paying for college, wedding) before the money is depleted. 

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Leaving money for your children

While I’m sure your children are wonderful, self-cleaning, and obedient at all times, they still cost money to raise.  A lot of money.  Ensuring your children’s financial needs are provided for in the event of your death is a major concern for most parents.  Life Insurance is a generally a relatively inexpensive way to protect your children’s future.  How much insurance you need depends on a number of factors.  I would recommend that if you and/or your spouse don’t have life insurance or are unsure if it would be sufficient to support your children into adulthood (and possibly through college), you consult a financial planner.  If you don’t already have one, might I recommend Karen Groves at Thrivent Financial in Burnsville.  She did a great job for me and treated me like I was an important client, even though I’m sure my term life policy was hardly worth the time she and her associate, Elizabeth McCray, put into it.  They even researched law school scholarships for me when I admitted that I hadn’t applied for any!  Now that’s personal service.

Even if you have life insurance or other assets, you still need a way to pass them to your children.  We’ll discuss choosing a Property Guardian (PG) in the next post, so let’s just pretend that you already have someone picked out to manage your children’s finances.

If you’re a very trusting person, you can name a PG for your children and leave no further instruction as to how the money should be spent.  The PG will manage the money until the child is a legal adult (18 in MN).   Once the child reaches 18, they get it all with no supervision or strings attached. *shudder*

A slightly more restrictive tool is to pass money through the Uniform Transfers to Minors Act (UTMA).  The age of majority under this act is set by state law—age 21 in Minnesota.  That would give your child three more years to mature before receiving a sizable sum of cash.  Again, the individual you choose to serve as PG would control the money until the child reaches 21 and the powers of the PG under the UTMA are set by state law. 

If you would like to have more control over when, how and for what purpose your children receive financial support, then a trust (or trusts) are a better choice for you.  Although they do cost more to set up, they provide tremendous flexibility and can be customized to meet the needs of each child.  You can set one trust for all of the children to draw from or separate trusts for each child and the trusts can last until a set age, until the last child dies, or any point in between. 

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Choosing the right guardians for your children

Choosing someone to raise your children in your place can be a gut wrenching decision.  No one can raise your children exactly as you would.  There is no perfect choice.  The best choice today may not be the best choice in ten years.  Do not allow the fact that there is no perfect choice prevent you from making a “best-under-the-circumstances” choice.  Your choice—based on your love for your children and understanding of their needs and personality—is still better than the court’s choice.  Don’t forget, you can always make changes to your will as your situation changes.

Once you have narrowed down your choices, you should speak with each of the individuals/couples to see if they would be willing to take on this responsibility in the remote chance that both parents pass away while your children are minors.  You should have at least two alternates in case your first choice is unable or unwilling to look after your children.

Special Note for Single Parents:  In all likelihood, your child’s other parent will get custody should you pass away.  It is extremely difficult to deny custody to the still-living parent.  However, you should still name a guardian as your child’s other parent may predecease you. 

If you do not have an obvious choice or you and your partner can’t agree on who should be named guardian, then consider making a list of the traits that are important to you and then rating them on a scale of 1-5 based on “would like” vs. “must have”.  Each parent should do this exercise separately.  Once you know which traits are most important to each of you, you can better compare the strengths of each of your choices. 

Remember:  there is no perfect choice.  You are also not limited to one guardian for all of your children.  In some circumstances it may work best to have children go to separate guardians based on their unique needs or personality.   To help you get started, here are some traits that you may want your child’s potential guardian to have:

·         Love your children/Your children love them

·         Live in the same school district

·         Have children the same age/Don’t have children

·         Could take the family pet/They don’t have pets (allergies)

·         Family members/Not part of your immediate family

·         Older/Younger

·         Would be willing to move into your home/have space in their home

·         Can handle your child’s medical/emotional needs

·         Share your religious beliefs

·         Share your educational beliefs

·         Share your parenting style

·         Are financially stable

·         Single/married—do you want to name an individual in case the couple divorces or would either spouse be a good single parent?  Do you only want your child to go to an intact family?

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