Divorce is a difficult time for all family members, but especially for the children. A child that has a serious illness or difficulty prior to the initiation of a divorce may have such problem accelerate during the divorce process. We call such child the “Special Needs Child”. This child has apparent or diagnosed emotional/medical problems.
Special Needs children are seriously impacted by the decisions made during a divorce. It is important for parties to determine how meaningful, regular visitation will be accomplished and which parent will have the right to make major decisions on how to address the child’s emotional and medical needs. During a divorce, most parents have difficulty agreeing on issues, especially issues related to the problems associated with a special needs child.
1. Child with Emotional Issues:
Children will always experience some level of negative emotions during the divorce process, even in the best circumstances. When a child has a mental illness or emotional problem, how visitation periods are managed, who has the authority to make a decision on medical treatment and therapy and how such decisions will be followed and enforced in each parent’s household will greatly affect the success or failure of the final decree as it pertains to the child. It is very important to have an order that is flexible and meets the child’s changing needs, yet remains enforceable should action need to be taken due to a parent’s failure to meet the needs of the child.
Three of the most reported emotional and behavioral issues involving children are Attention Deficit Hyperactivity Disorder (ADHD) Behavioral or Conduct Disorders, Oppositional Defiant Disorder (ODD), and chemical addictions.
2. Special Medical Needs
When a child has significant medical health problems or disabilities, parents may have very different opinions on who should be the decision maker regarding doctors, medications and regimens for a particular situation. This may be compounded by the emotions and breakdown in the marital relationship. The court must help to balance the needs and rights of the parents so that each has a voice in their child’s treatment decisions. It is also important that the parties, along with the Court, work for a consistent treatment protocol for the best interest of meeting the child’s medical needs.
The real battleground in custody cases becomes the allocation of rights and duties between the parties. This is exacerbated when the child involved has emotional or medical needs. Other factors that may compound issues are 1) other children involved and 2) whether they also have special needs. Major problems occur when there are differing views between the parents on how to best treat the problem, lack of consensus among medical and mental health professionals as to the appropriate protocol for treatment and uncertainty among family courts as to which protocol to “impose” upon the family.
Courts vary greatly on how each allocates rights and duties, even in joint managing conservatorship situations. In the event the parties cannot agree on the allocation of rights pertaining to educational and medical decisions, then the focus of a custody case becomes one of which parent can best make decisions that are in the best interest of the child.
To make a meaningful decision on the care of the child, the court will need evidence of the following:
· Which parent is the most involved in the decision marking as pertains to the relevant issue?
· What are the competing theories of how to best treat the child?
· Current opinions from the child’s physician and /or therapist.
· What is the generally accepted treatment for the specific condition?
· What is the likelihood of each parent following the protocol selected by the court?
· How successful has the treatment been in the past?
· What are the attitudes of the parents in relation to considering alternative methods if the current situation doesn’t work?
· Which parent has shown a proven effort at recognizing the child’s needs and working to address them?
The selection of a reputable expert in the particular field in which the child is affected is paramount to a true evaluation of the situation. Not all doctors and therapists are created equal, and the expert must be a specialist in working with the child’s specific problem.
The Nacol Law Firm P.C.
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
Monday, May 18, 2009
Divorce really sucks (a view from the trenches) Part 5
Trial Strategy – Constructive or Nonproductive
Throughout the tenure of a divorce or custody suit, strategies are employed to improve the strategic position of a spouse before the court or a civil jury.
A non-all-inclusive list of such pursuits of a spouse and his or her attorney may include the following non-productive trial strategies:
1. False claim of child abuse – frequently attorneys and/or their clients will make artificial or transparent claims of child abuse either directly to a jury in a trial or through the filing of a frivolous Child Protective Services complaint. Such ineffective claims may include claims of physical abuse (when in truth is a properly administered and appropriate corporal punishment for grievous conduct dangerous to the child), false claims of injury (whether it be normal scrapes and bruises occurring from play, garden variety accidents all children have, or fractures to the arm or leg occurring through no real fault of either spouse). Frequently, the claims are exaggerated with photographs and close up shots and, on occasion, artificial support from the minor child through the coercion of a spouse. Jury’s are very resentful of this approach and will hold the party asserting such frivolous claims accountable at the end of the day.
2. False claims of alcoholism, substance abuse and/or prescription drug excess – painting a picture of a spouse as an alcoholic or a danger to his or her child based on a glass of wine at an Italian restaurant is frequently a ploy attorneys will use given great social resentment to alcoholism, DWIs and general drug abuse. Certainly, if the abuse is real the claim is valid and is constructive. However, frequently clients will exaggerate social alcohol consumption that is reasonable and is looked upon by the jury as a waste of their time and they will frequently hold the party falsely alleging such abuse accountable.
3. WAR by financial attrition - if there is insufficient community property to adequately fund both sides of a divorce, one spouse may use outside sources of income in the form of family loans, gifts, spend thrift trust disbursements or other disbursements from relatives to financially bring the opposing spouse to his or her knees and demand agreement to terms that are unreasonable and not productive for the underfunded spouse or the children of the marriage. Regrettably, the divorce process is part of the adversary system of justice and leaves this unfair loophole open in such circumstances. Though not outright unethical, such conduct and strategy does not pass the smell test.
4. Cookie cutter witnesses – preachers, rabbis, soccer coaches, parents, grandmothers, grandfathers, brothers and sisters generally bring a yawn from the jury or the court. If their testimony is direct, short and fact driven on an important core issue in a divorce or custody suit, they are necessary. In general, the jury’s perspective is, “what do you think a preacher, grandparent or soccer coach is going to say about the child in their care...that the mother or father they support are bad?”
5. Use of the children as spies – attorneys or clients that use the children to spy and give testimony before a court or jury almost always fail in their goal. Most judges and a majority of juries are highly resentful for bringing minor children into the fray and such a strategy is doomed to backfire before the judge or jury. Clearly, if a relatively mature child is the ONLY source of information that is core to the case and IF there is no other third party professional or other source to support the issue, sometimes the testimony is necessary. This is especially true in cases of real abuse, parental alienation and other destructive conduct that is fundamental to the issues of the case.
Productive strategies:
1. Here is a novel idea. How about truth and sincerity. It has been this writer’s experience that a jury will give some ear to experts, social workers, teachers, coaches, doctors, preachers and other witness with personal knowledge. Inevitably, the final result is driven by the truth and sincerity of the spouse testifying. With predictable regularity a jury will make their decision based squarely on the shoulders of the spouse testifying and the honesty and forthrightness of their testimony.
2. Experts – psychologists, psychiatrists, social workers, doctors and other professionals will be given credibility to some degree by a jury IF their opinions are based on acceptable, acknowledged predictable science and IF they have spent sufficient time with the minor child and/or both parents to render a believable opinion. Rent-an-expert’s testimony is disdained by most juries and seen for what it is - as an opinion for hire. The longer the relationship between the testifying expert and the minor child, the greater the likelihood will be that the opinion is fairly received and considered by a court or jury.
3. Election by a minor over 12 years of age- any child over the age of 12 may sign an election (affidavit) of their preference of primary caregiver. The courts will strongly consider these elections and in the large number of the cases make a decision based on the child’s wishes. Juries will favorably consider such elections so long as they are based on believable facts and parental propriety. However, the securing of such an affidavit when in conjunction with a new car, a new wardrobe, or a loose, undisciplined parental attitude towards control of the child will result in the opposite of what the spouse seeks in obtaining such an election. The elections are not binding on the court, but if they are legitimate and based on fact, they are highly cogent evidence which the court and the jury will strongly consider.
4. Depositions of paramours, IRS agents, psychologists, doctors, ex-wives, employers, secretaries, etc. – well thought out, terse, and to the point testimony on facts that support a claim revealed in depositions is far more effective than hearsay or other testimony that is not likely to be received well by the jury. It is important that such deposition testimony be short, to the point and dispositive of a real issue in the case.
The above is not an inclusive list of strategies employed during the divorce proceeding, however, if properly employed or excluded may be instrumental in a positive result for the client during this very difficult time.
The Nacol Law Firm P.C.
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
Throughout the tenure of a divorce or custody suit, strategies are employed to improve the strategic position of a spouse before the court or a civil jury.
A non-all-inclusive list of such pursuits of a spouse and his or her attorney may include the following non-productive trial strategies:
1. False claim of child abuse – frequently attorneys and/or their clients will make artificial or transparent claims of child abuse either directly to a jury in a trial or through the filing of a frivolous Child Protective Services complaint. Such ineffective claims may include claims of physical abuse (when in truth is a properly administered and appropriate corporal punishment for grievous conduct dangerous to the child), false claims of injury (whether it be normal scrapes and bruises occurring from play, garden variety accidents all children have, or fractures to the arm or leg occurring through no real fault of either spouse). Frequently, the claims are exaggerated with photographs and close up shots and, on occasion, artificial support from the minor child through the coercion of a spouse. Jury’s are very resentful of this approach and will hold the party asserting such frivolous claims accountable at the end of the day.
2. False claims of alcoholism, substance abuse and/or prescription drug excess – painting a picture of a spouse as an alcoholic or a danger to his or her child based on a glass of wine at an Italian restaurant is frequently a ploy attorneys will use given great social resentment to alcoholism, DWIs and general drug abuse. Certainly, if the abuse is real the claim is valid and is constructive. However, frequently clients will exaggerate social alcohol consumption that is reasonable and is looked upon by the jury as a waste of their time and they will frequently hold the party falsely alleging such abuse accountable.
3. WAR by financial attrition - if there is insufficient community property to adequately fund both sides of a divorce, one spouse may use outside sources of income in the form of family loans, gifts, spend thrift trust disbursements or other disbursements from relatives to financially bring the opposing spouse to his or her knees and demand agreement to terms that are unreasonable and not productive for the underfunded spouse or the children of the marriage. Regrettably, the divorce process is part of the adversary system of justice and leaves this unfair loophole open in such circumstances. Though not outright unethical, such conduct and strategy does not pass the smell test.
4. Cookie cutter witnesses – preachers, rabbis, soccer coaches, parents, grandmothers, grandfathers, brothers and sisters generally bring a yawn from the jury or the court. If their testimony is direct, short and fact driven on an important core issue in a divorce or custody suit, they are necessary. In general, the jury’s perspective is, “what do you think a preacher, grandparent or soccer coach is going to say about the child in their care...that the mother or father they support are bad?”
5. Use of the children as spies – attorneys or clients that use the children to spy and give testimony before a court or jury almost always fail in their goal. Most judges and a majority of juries are highly resentful for bringing minor children into the fray and such a strategy is doomed to backfire before the judge or jury. Clearly, if a relatively mature child is the ONLY source of information that is core to the case and IF there is no other third party professional or other source to support the issue, sometimes the testimony is necessary. This is especially true in cases of real abuse, parental alienation and other destructive conduct that is fundamental to the issues of the case.
Productive strategies:
1. Here is a novel idea. How about truth and sincerity. It has been this writer’s experience that a jury will give some ear to experts, social workers, teachers, coaches, doctors, preachers and other witness with personal knowledge. Inevitably, the final result is driven by the truth and sincerity of the spouse testifying. With predictable regularity a jury will make their decision based squarely on the shoulders of the spouse testifying and the honesty and forthrightness of their testimony.
2. Experts – psychologists, psychiatrists, social workers, doctors and other professionals will be given credibility to some degree by a jury IF their opinions are based on acceptable, acknowledged predictable science and IF they have spent sufficient time with the minor child and/or both parents to render a believable opinion. Rent-an-expert’s testimony is disdained by most juries and seen for what it is - as an opinion for hire. The longer the relationship between the testifying expert and the minor child, the greater the likelihood will be that the opinion is fairly received and considered by a court or jury.
3. Election by a minor over 12 years of age- any child over the age of 12 may sign an election (affidavit) of their preference of primary caregiver. The courts will strongly consider these elections and in the large number of the cases make a decision based on the child’s wishes. Juries will favorably consider such elections so long as they are based on believable facts and parental propriety. However, the securing of such an affidavit when in conjunction with a new car, a new wardrobe, or a loose, undisciplined parental attitude towards control of the child will result in the opposite of what the spouse seeks in obtaining such an election. The elections are not binding on the court, but if they are legitimate and based on fact, they are highly cogent evidence which the court and the jury will strongly consider.
4. Depositions of paramours, IRS agents, psychologists, doctors, ex-wives, employers, secretaries, etc. – well thought out, terse, and to the point testimony on facts that support a claim revealed in depositions is far more effective than hearsay or other testimony that is not likely to be received well by the jury. It is important that such deposition testimony be short, to the point and dispositive of a real issue in the case.
The above is not an inclusive list of strategies employed during the divorce proceeding, however, if properly employed or excluded may be instrumental in a positive result for the client during this very difficult time.
The Nacol Law Firm P.C.
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
Tuesday, May 12, 2009
Sealing the Deal: Contracts – A Smart Investment (Part 1)
A legal contract is an important tool for businesses both large and small. Unfortunately, we live in a very litigious society and the days of the simple handshake to finalize a deal are, for the most part, over. Scrimping to save on costs at the beginning of a project may cost your company tens of thousands of dollars in the long run. Be careful of boiler plate contract forms. While they may spell out certain legal rights, they may also fail to include other vital provisions that will negate future disputes. Every contract should be read thoroughly and should you find a provision to be unclear, ask questions. If the terms of a contract are vague or excessively one-sided, you may end up unnecessarily in court. Both parties should gain value from the contract. Clear contracts make for happy profitable business relationships.
A contract should clearly define the terms of the parties and spell out exactly what the project entails. It formalizes the agreement, clarifies communications, and provides a predetermined recourse for when things go wrong. It may include payment terms or conditions, protection of trade secrets, restrictive geographic scopes, timelines, warranties, exclusions, cancellation clauses, penalty clauses, etc. A good contract keeps energies focused on the underlying project and allows the parties to get things done more efficiently. Therefore, a contract must not only be clear, it must also be concise.
A contract becomes increasingly important in times of dispute. A lack of clarity in a contract can lead to costly litigation. Remember, in a court of law, a written contract trumps an oral contract. To coin a phrase, “the written pen is mightier than the tongue.” In other words, in instances where written and oral portions of a contract contradict each other, the written portion prevails. Disputes can be minimized if the hard-line terms are negotiated and spelled out at the beginning of the relationship when the contract is being formed.
Some essentials to consider when creating a contract are as follows:
1) Parties to the agreement should be spelled out
2) There should be some consideration offered for the agreement
3) Parties should be competent to contract. All persons are legally authorized to contract except the following:
a) Minors, who are under 18 years of age.
b) Mentally incompetent persons
c) Persons ineligible from entering into contract by law
4) Free consent to the agreement
5) Object of agreement should be lawful
6) Detailed description of the duties and obligations of the parties
7) Representations concerning warranties
8) Confidentiality clauses
9) The force majeure clause which generally provides that no party will be liable for non-performance arising out of an event of force majeure e.g. war, terrorist act, epidemic
10) The terms of the agreement between the parties should be specific
11) Events on occurrence of which the contract will be terminated should be specific
12) A method of giving notice for breach and providing the breaching party a time to cure (generally a party who has suffered due to a breach of contract can claim damages that will put the non-breaching party in the position they would have been in if the contract had been performed)
13) Relief available to one party on the breach of the other party
14) Arbitration or mediation clause
15) Termination or duration of contract
There are many forms of contracts, to be discussed in Part II of Sealing the Deal: Contracts – A Smart Investment.
Nacol Law Firm PC
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
Monday, May 4, 2009
What happens if you die without a will in Texas?
When a person dies without having made a will, property passes according to the criteria described in the Probate Code. Many people falsely believe that a surviving spouse or parent would take all the deceased’s property, especially if the children are young. That is not necessarily the case. The Texas Probate Code provides as follows:
On the intestate (without a will) death of one of the spouses to a marriage, the community property estate of the deceased spouse passes to the surviving spouse if:
1) no child or other descendant of the deceased spouse survives the deceased spouse; or
2) all surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.
On the intestate death of one of the spouses to a marriage, if a child or other descendant of the deceased spouse survives the deceased spouse and the child or descendant is not a child or descendant of the surviving spouse, one-half of the community estate is retained by the surviving spouse and the other one-half passes to the children or descendants of the deceased spouse. The descendants shall inherit only such portion of said property to which they would be entitled under Section 43 of the Texas Property Code. In every case, the community estate passes charged with the debts against it.
If a person dies intestate leaving no husband or wife, it shall descend and pass in parcenary to his children in the following course:
1) To his children and their descendants.
2) If there be no children nor their descendants, then to his father and mother, in equal portions. But if only the father or mother survive the intestate, then his estate shall be divided into two equal portions, one of which shall pass to such survivor, and the other half shall pass to the brothers and sisters of the deceased, and to their descendants; but if there be none such, then the whole estate shall be inherited by the surviving father or mother.
3) If there be neither father nor mother, then the whole of such estate shall pass to the brothers and sisters of the intestate, and to their descendants.
4) If there be none of the kindred aforesaid, then the inheritance shall be divided into two moieties, one of which shall go to the paternal and the other to the maternal kindred, in the following course:
To the grandfather and grandmother in equal portions, but if only one of these be living, then the estate shall be divided into two equal parts, one of which shall go to such survivor, and the other shall go to the descendant or descendants of such deceased grandfather or grandmother. If there be no such descendants, then the whole estate shall be inherited by the surviving grandfather or grandmother. If there be no surviving grandfather or grandmother, then the whole of such estate shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.
Where any person having title to any estate, real, personal or mixed, other than a community estate, shall die intestate as to such estate, and shall leave a surviving husband or wife, such estate of such intestate shall descend and pass as follows:
1) If the deceased have a child or children, or their descendants, the surviving husband or wife shall take one-third of the personal estate, and the balance of such personal estate shall go to the child or children of the deceased and their descendants. The surviving husband or wife shall also be entitled to an estate for life, in one-third of the land of the intestate, with remainder to the child or children of the intestate and their descendants.
2) If the deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate, and to one-half of the lands of the intestate, without remainder to any person, and the other half shall pass and be inherited according to the rules of descent and distribution; provided, however, that if the deceased has neither surviving father nor mother nor surviving brothers or sisters, or their descendants, then the surviving husband or wife shall be entitled to the whole of the estate of such intestate.
There shall be no distinction in regulating the descent and distribution of the estate of a person dying intestate between property which may have been derived by gift, devise or descent from the father, and
that which may have been derived by gift, devise or descent from the mother; and all the estate to which such intestate may have had title at the time of death shall descend and vest in the heirs of such person in the same manner as if he had been the original purchaser thereof.
No right of inheritance shall accrue to any persons other than to children or lineal descendants of the intestate, unless they are in being and capable in law to take as heirs at the time of the death of the intestate.
In situations where the inheritance passes to the collateral kindred of the intestate, if part of such collateral be of the whole blood, and the other part be of the half blood only, of the intestate, each of those of half
blood shall inherit only half so much as each of those of the whole blood; but if all be of the half blood, they shall have whole portions.
No person is disqualified to take as an heir because he or a person through whom he claims is or has been an alien.
No conviction shall work corruption of blood or forfeiture of estate, except in the case of a beneficiary in a life insurance policy or contract who is convicted and sentenced as a principal or accomplice in willfully bringing about the death of the insured, in which case the proceeds of such insurance policy or contract shall be paid as provided in the Insurance Code of this State, as same now exists or is hereafter amended; nor shall there be any forfeiture by reason of death by casualty; and the estates of those who destroy their own lives shall descend or vest as in the case of natural death.
The Nacol Law Firm PC
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
On the intestate (without a will) death of one of the spouses to a marriage, the community property estate of the deceased spouse passes to the surviving spouse if:
1) no child or other descendant of the deceased spouse survives the deceased spouse; or
2) all surviving children and descendants of the deceased spouse are also children or descendants of the surviving spouse.
On the intestate death of one of the spouses to a marriage, if a child or other descendant of the deceased spouse survives the deceased spouse and the child or descendant is not a child or descendant of the surviving spouse, one-half of the community estate is retained by the surviving spouse and the other one-half passes to the children or descendants of the deceased spouse. The descendants shall inherit only such portion of said property to which they would be entitled under Section 43 of the Texas Property Code. In every case, the community estate passes charged with the debts against it.
If a person dies intestate leaving no husband or wife, it shall descend and pass in parcenary to his children in the following course:
1) To his children and their descendants.
2) If there be no children nor their descendants, then to his father and mother, in equal portions. But if only the father or mother survive the intestate, then his estate shall be divided into two equal portions, one of which shall pass to such survivor, and the other half shall pass to the brothers and sisters of the deceased, and to their descendants; but if there be none such, then the whole estate shall be inherited by the surviving father or mother.
3) If there be neither father nor mother, then the whole of such estate shall pass to the brothers and sisters of the intestate, and to their descendants.
4) If there be none of the kindred aforesaid, then the inheritance shall be divided into two moieties, one of which shall go to the paternal and the other to the maternal kindred, in the following course:
To the grandfather and grandmother in equal portions, but if only one of these be living, then the estate shall be divided into two equal parts, one of which shall go to such survivor, and the other shall go to the descendant or descendants of such deceased grandfather or grandmother. If there be no such descendants, then the whole estate shall be inherited by the surviving grandfather or grandmother. If there be no surviving grandfather or grandmother, then the whole of such estate shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants.
Where any person having title to any estate, real, personal or mixed, other than a community estate, shall die intestate as to such estate, and shall leave a surviving husband or wife, such estate of such intestate shall descend and pass as follows:
1) If the deceased have a child or children, or their descendants, the surviving husband or wife shall take one-third of the personal estate, and the balance of such personal estate shall go to the child or children of the deceased and their descendants. The surviving husband or wife shall also be entitled to an estate for life, in one-third of the land of the intestate, with remainder to the child or children of the intestate and their descendants.
2) If the deceased have no child or children, or their descendants, then the surviving husband or wife shall be entitled to all the personal estate, and to one-half of the lands of the intestate, without remainder to any person, and the other half shall pass and be inherited according to the rules of descent and distribution; provided, however, that if the deceased has neither surviving father nor mother nor surviving brothers or sisters, or their descendants, then the surviving husband or wife shall be entitled to the whole of the estate of such intestate.
There shall be no distinction in regulating the descent and distribution of the estate of a person dying intestate between property which may have been derived by gift, devise or descent from the father, and
that which may have been derived by gift, devise or descent from the mother; and all the estate to which such intestate may have had title at the time of death shall descend and vest in the heirs of such person in the same manner as if he had been the original purchaser thereof.
No right of inheritance shall accrue to any persons other than to children or lineal descendants of the intestate, unless they are in being and capable in law to take as heirs at the time of the death of the intestate.
In situations where the inheritance passes to the collateral kindred of the intestate, if part of such collateral be of the whole blood, and the other part be of the half blood only, of the intestate, each of those of half
blood shall inherit only half so much as each of those of the whole blood; but if all be of the half blood, they shall have whole portions.
No person is disqualified to take as an heir because he or a person through whom he claims is or has been an alien.
No conviction shall work corruption of blood or forfeiture of estate, except in the case of a beneficiary in a life insurance policy or contract who is convicted and sentenced as a principal or accomplice in willfully bringing about the death of the insured, in which case the proceeds of such insurance policy or contract shall be paid as provided in the Insurance Code of this State, as same now exists or is hereafter amended; nor shall there be any forfeiture by reason of death by casualty; and the estates of those who destroy their own lives shall descend or vest as in the case of natural death.
The Nacol Law Firm PC
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
Bitter Truths are Painful but Help Children Recover
The transition process for a child in a divorce is a difficult one which can result in acceptance, growth and renewal or long term resentments and unrealistic expectations.
It is this writer’s belief that the most heinous, destructive event that can occur in a divorce process is the use of the children by either spouse to support their own emotional needs or to seek advantage in the process through their children.
If the divorce is accepted and inevitable, every child deserves to know bluntly and directly where they stand. The exact approach a parent should take with their children will depend on the particular nuclear family, the life belief systems of the family and the relative maturity of each child. At some point, even with young children, every child has a right to know that mom and dad are getting a divorce, will never live together again, do not want to be married, and, if indicated, do not love each other anymore. This brutal truth inevitably will result in acting out, crying, assessment of blame, and sometimes pleading for a different result. Frequently, there is a temporary drop in grade levels, achievement scores and, in the teenage years, disrespect, substance experimentation and/or abuse and authority issues with teachers, coaches or other mentors which have not occurred prior to the separation. I believe that with honest direct knowledge, regardless of the pain, acting out and emotional injury, the children are at least standing on reality, firmly on the ground, and have a reference with other children, peer groups, and friends who on many occasions have been through the same thing. They can express their feelings directly to their friends and peers. They can converse with authority figures or others directly about the truth of the situation and can commence their new lives based on truths and not fantasy.
Alternatively, the most destructive approach a female or male may take with their children is to offer denial or false explanations such as “my mom and daddy are not going to live together for a while, but they may get back together some day,” or “mom and dad love each other, things are not working out right now and we will just have to see.” In the short term, this approach probably is less emotionally upsetting and easier for the parents and the children. In the long run, it can be catastrophic as the children of the relationship are standing in quicksand and falsehoods which give their children no base of reference among their peers at school, church, clubs, etc. They have nothing they can discuss or share with their peers because their parents are “not married” and are “not divorced.” They may become confounded, and this writer believes the result may be long-term character issues and other disorders which may be avoided if the children are allowed to go through their own grief reaction and start new lives based on truth rather than fanciful false hopes.
It is absolutely critical that each spouse never demean the self-esteem of the other spouse to their children or to other adults in front of their children. If dad is a drunk and a mother tells her eight year old son this is the “reason” for the divorce, then every time that eight year old boy looks in the mirror he sees a drunk. If a father tells a daughter that a divorce had to occur because of the mother’s new relationship with another man, then every time that young girl looks in the mirror she sees a whore. Children will internalize these assertions because regardless of whether the assertions are right or wrong, they are being made by people who are their parents, advisors and whose behavior they model. Rest assured that a frequent dead-beat father or mother is infinitely better than no father or mother at all. Additionally, it has been this attorney’s experience that using the children to forge a position in a divorce inevitably back-fires before the judge and/or jury and, over the long-haul as the children mature into adulthood, they will resent the self-degradation of the other spouse and hold it against the spouse who tried to manipulate the child for the rest of their lives.
Once a direct, unambiguous, concise, and sometimes brutally honest statement is made to the children as to what their future will be, the best emotional results for the children appear to come from parents who thereafter remain silent on the topic. Children frequently are dealing with adolescence, puberty, early religious beliefs, adaptation to sexual urges that are normal and hormonal, and every other issue all children deal with as they mature and grow. The last thing on earth minor children need in this contentious environment is to become a go-between message carrier or spy against a parent who is someone they love and who they follow as a role model, during a terrible period of time in their life when their own grief reaction is just as hard and painful as that of the parents going through the divorce.
The Nacol Law Firm PC
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
It is this writer’s belief that the most heinous, destructive event that can occur in a divorce process is the use of the children by either spouse to support their own emotional needs or to seek advantage in the process through their children.
If the divorce is accepted and inevitable, every child deserves to know bluntly and directly where they stand. The exact approach a parent should take with their children will depend on the particular nuclear family, the life belief systems of the family and the relative maturity of each child. At some point, even with young children, every child has a right to know that mom and dad are getting a divorce, will never live together again, do not want to be married, and, if indicated, do not love each other anymore. This brutal truth inevitably will result in acting out, crying, assessment of blame, and sometimes pleading for a different result. Frequently, there is a temporary drop in grade levels, achievement scores and, in the teenage years, disrespect, substance experimentation and/or abuse and authority issues with teachers, coaches or other mentors which have not occurred prior to the separation. I believe that with honest direct knowledge, regardless of the pain, acting out and emotional injury, the children are at least standing on reality, firmly on the ground, and have a reference with other children, peer groups, and friends who on many occasions have been through the same thing. They can express their feelings directly to their friends and peers. They can converse with authority figures or others directly about the truth of the situation and can commence their new lives based on truths and not fantasy.
Alternatively, the most destructive approach a female or male may take with their children is to offer denial or false explanations such as “my mom and daddy are not going to live together for a while, but they may get back together some day,” or “mom and dad love each other, things are not working out right now and we will just have to see.” In the short term, this approach probably is less emotionally upsetting and easier for the parents and the children. In the long run, it can be catastrophic as the children of the relationship are standing in quicksand and falsehoods which give their children no base of reference among their peers at school, church, clubs, etc. They have nothing they can discuss or share with their peers because their parents are “not married” and are “not divorced.” They may become confounded, and this writer believes the result may be long-term character issues and other disorders which may be avoided if the children are allowed to go through their own grief reaction and start new lives based on truth rather than fanciful false hopes.
It is absolutely critical that each spouse never demean the self-esteem of the other spouse to their children or to other adults in front of their children. If dad is a drunk and a mother tells her eight year old son this is the “reason” for the divorce, then every time that eight year old boy looks in the mirror he sees a drunk. If a father tells a daughter that a divorce had to occur because of the mother’s new relationship with another man, then every time that young girl looks in the mirror she sees a whore. Children will internalize these assertions because regardless of whether the assertions are right or wrong, they are being made by people who are their parents, advisors and whose behavior they model. Rest assured that a frequent dead-beat father or mother is infinitely better than no father or mother at all. Additionally, it has been this attorney’s experience that using the children to forge a position in a divorce inevitably back-fires before the judge and/or jury and, over the long-haul as the children mature into adulthood, they will resent the self-degradation of the other spouse and hold it against the spouse who tried to manipulate the child for the rest of their lives.
Once a direct, unambiguous, concise, and sometimes brutally honest statement is made to the children as to what their future will be, the best emotional results for the children appear to come from parents who thereafter remain silent on the topic. Children frequently are dealing with adolescence, puberty, early religious beliefs, adaptation to sexual urges that are normal and hormonal, and every other issue all children deal with as they mature and grow. The last thing on earth minor children need in this contentious environment is to become a go-between message carrier or spy against a parent who is someone they love and who they follow as a role model, during a terrible period of time in their life when their own grief reaction is just as hard and painful as that of the parents going through the divorce.
The Nacol Law Firm PC
Law office of Attorney Mark Nacol
Serving the Dallas / Fort Worth Metroplex for over 30 years
Tel: 972-690-3333
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