School Choice Dispute

Parents who are unmarried, separated or divorced may disagree about how to raise their children, and specifically where to send them to school.  While the Delaware Family Court very much prefers for parents to discuss their children's educational options objectively and come to a consensus about where to send their children to school, this is not always possible for a multitude of reasons.  In situations where the parents reach an impasse, the Family Court has jurisdiction to vest authority in one parent to enroll a child in an eligible school over the other parent's objection. 

In a school choice dispute, the parents have the option to engage in alternative dispute resolution with a trained arbitrator or mediator versus appearing in Family Court for a hearing before a judge.  There are many benefits to alternative dispute resolution.  But it is voluntary, which means both parents must agree to go this route.  Accordingly, one parent may be forced to file a Petition for Custody or a Petition to Modify a Custody Order, seeking sole custody, primary residence or final decision-making authority over educational decisions.  If you appear before a judge, there are a number of factors the judge is required to consider, including but not limited to, the wishes of the parents and children, the children's adjustment to home school and community, and past and present compliance of the parents with their parental responsibilities and obligations.  If the child is of an appropriate age and maturity level, the judge can interview the child about his or wishes at either parent's request.  

Historically, Delaware Family Court judges have shown an unwillingness to order a child to attend a private school over the other parent's objection, except in situations where the public school cannot meet the individualized special needs of a child and the parents have the financial ability to afford private school tuition.  But this is changing.  In a recent decision by Chief Judge Michael K. Newell of the Family Court, the Court awarded the mother with final decision-making authority over educational decisions with full knowledge that she intended enroll her child in a private school over the father's objection.  Chief Judge Newell distinguished the prior case law to the contrary on the bases that the child had attended the private school in question since he was four years old, the father did not oppose the decision to send his child to private school during the parties' marriage, and another disruption or transition for the child would not be in his best interest.  A.P. v. U.P., Del. Fam., File No. CN14-01480, Newell, C.J. (Feb. 17, 2016)

School choice disputes are incredibly fact specific.   Consider scheduling an initial consultation with a family law attorney who specializes in this area to discuss your options.

Premarital Agreement: Is It Enforceable?

Not all premarital agreements are enforceable.  A premarital agreement is not enforceable if the party against whom enforcement is sought proves that:

1. Such party did not execute the agreement voluntarily; or
2. The agreement was unconscionable when it was executed and, before execution of the agreement, that party:
   • Was not provided a fair and reasonable disclosure of the property or financial obligations of the other party;
   • Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and
   • Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the other party.

Moreover, the right of a child to support from either parent may not be adversely affected by a premarital agreement.  If you have a premarital agreement and waived child support or accepted a lower amount than you would receive pursuant to the Delaware Child Support Formula, this term is unenforceable. 

Consider scheduling an initial consultation with a family law attorney who specializes in this area to avoid any uncertainty about the enforceability of your premarital agreement.  

Premarital Agreement: Why Do I Need It?

Premarital agreements add certainty in the event of divorce.  These agreements can predetermine how marital and non-marital assets and debts will be distributed between the spouses and what alimony or spousal support will be paid.  They can also protect a spouse's assets from division and preserve them for the spouse's heirs. 

If you married without a premarital agreement, it is not too late.  You have the option of creating a postnuptial agreement to establish the same property and support obligations.

Consider scheduling an initial consultation with a family law attorney who specializes in this area to discuss your options. 

Premarital Agreement: What is It?

Controlled by Chapter 3 of Title 13 of the Delaware Code, a "premarital agreement" (or "PreNup" as it is often referred to in casual conversation) is an agreement between prospective spouses made in contemplation of marriage, and which becomes effective upon marriage.  A premarital agreement must be in writing and signed by both parties (notarized signatures is best practice).

Parties to a premarital agreement may contract with respect to:

1. The rights and obligations of each of the parties in any of the property of either or both of them whenever and wherever acquired or located;
2. The right to buy, sell, use, transfer, exchange, abandon, lease, consume, expend, assign, create a security interest in, mortgage, encumber, dispose of, or otherwise manage and control property;
3. The disposition of property upon separation, marital dissolution, death, or the occurrence or nonoccurrence of any other event;
4. The modification or elimination of spousal support or alimony;
5. The making of a will, trust, or other arrangement to carry out the provisions of the agreement;
6. The ownership rights in and disposition of the death benefit from a life insurance policy;
7. The choice of law governing the construction of the agreement; and
8. Any other matter, including their personal rights and obligations, not in violation of public policy or a statute imposing a criminal penalty.

There is one clear limit set by the Delaware Legislature on the parties' right to contract: the right of a child to support from either parent may not be adversely affected by a premarital agreement. 

After marriage, a premarital agreement may be amended or revoked only by a written agreement signed by the parties (notarized signatures is best practice).

Each party should retain an original, signed version of the premarital agreement for their records.

If you are getting marriage and have assets that need protecting, consider scheduling an initial consultation with a family law attorney who specializes in this area to draft your premarital agreement. 

Student Loans: Are They Marital Debt?

Section 1513 of Title 13 of the Delaware Code governs the disposition of marital property. In a proceeding for divorce or annulment, the Family Court shall, upon request of either party, equitably divide, distribute, and assign the marital property between the parties. This happens without regard to marital misconduct, in such proportions as the Court deems just after considering all relevant factors. 

"Marital property" is defined by statute. It includes all property acquired by either party subsequent to the marriage, irrespective of how it is titled, with certain enumerated exceptions. Those exceptions include gifts, except gifts between spouses, property acquired in exchange for property acquired prior to the marriage, property excluded by valid agreement of the parties, and the increase in value of property acquired prior to the marriage.  

The Family Court has consistently interpreted marital property to include both assets and debts. Accordingly, debts incurred by either party subsequent to the marriage, irrespective of how it is titled, may be divided by the Family Court ancillary to a divorce or annulment upon the request of either party. Marital debts can include mortgages, home equity loans, vehicle loans, loans against 401(k) plans, credit card debts, personal loans, and, yes, even student loans taken out in a spouse's name for his or her personal benefit or the benefit of his or her children.  

While the Court has discretion on how to divide a student loan debt, i.e. the percentage distribution between the parties, make no mistake, it will be considered part of the marital estate. That is, unless the parties have a valid agreement stating otherwise.

Spouses can reach an agreement as to how to divide certain assets and debts at any time -- prior, during or after the marriage. It is important to consult with an experienced lawyer to draft your agreement because not all contracts are deemed enforceable. You can click here and send us an email if you have questions about drafting a valid agreement for division of assets and/or debts. 

Legislative Amendments to Child Support Law

Governor Jack Markell recently signed into law two bills that impact child support in the State of Delaware.  Below is an explanation of the changes and how they may impact your right to receive child support or obligation to pay child support.

House Bill 131 was signed into law by Governor Markell on July 29, 2016.

The purpose of HB 131 is to strengthen and update the civil enforcement section of the Delaware Code relating to child support and medical support (13 Del. C. § 513). In most situations there is a court-ordered withholding order, which is also known as a wage attachment.  

For those situations where there is no order, this section allows a person who is owed child support to obtain a withholding order upon sending notice to the Family Court that the child support payments are more than one month late. If the existing order does not include payment on arrears or if the ordered payment on arrears is less than 20% of current support, then the income attachment shall be issued in the amount of current support plus an amount payable toward arrears of up to 20% of the current support order or $20 per month, whichever is greater.

If the existing medical support order does not include an attachment for payment of health insurance coverage for the child, payment for his or her share (if any) for premiums of health insurance coverage shall be added to the attachment.   

House Bill 174 was signed into law by Governor Markell on July 29, 2016.

The purpose of HB 174 is to ease the requirements for a party seeking to modify a child support order (increase or decrease) (13 Del. C. § 513). The Bill provides for two significant changes.

First, it allows the Division of Child Support Enforcement ("DCSE") to be a party to a petition for modification of child support. This is significant because the DCSE is now subject to the same conditions as the parents in the action. 

The second change is made to the requirements for giving notice to the opposing party. The Bill only requires notice by regular mail (versus certified or registered mail) to the opposing party's last known address. Said notice is effective on the date of delivery, or first attempted delivery, or three days after posting (if by regular mail), whichever first occurs. This is significant because any upward or downward modification of child support can be made retroactive to three days after posting by regular mail. Plus this should alleviate issues regarding obtaining proper service on the opposing party. 

Combined Campaign for Justice Charity Tournament

The 4th Annual Golf and Tennis tournament to benefit the Combined Campaign for Justice held on July 18, 2016 at DuPont Country Club was a tremendous success!  Thanks to the more than 200 golfers, tennis players, sponsors and volunteers, over $36,000 (after expenses) was raised to benefit Delaware's three legal services organization: Community Legal Aid Society, Inc. (CLASI), Delaware Volunteer Legal Services, Inc. (DVLS), and Legal Services Corporation of Delaware, Inc. (LSCD). These organizations provide legal services to those who cannot afford to hire an attorney. They help parents and their children obtain protection from abuse orders from dangerous individuals, families facing wrongful evictions or foreclosures remain in their homes, and elderly people who have been taken advantage of by unscrupulous lenders recover their losses to name a few of their services. 

The Yeager Law Firm foursome: Christopher Talley, Paul Talley, Julie Yeager, Terry Holm (left to right).

We’re already looking forward to next year’s event which will once again be held at DuPont Country Club on Monday, July 17, 2017. If you’re interested in participating as a sponsor or team, please email me at julie.yeager@yeagerfamilylaw.com.

What Rights Do You Have as a Relative of a Child in Delaware Foster Care?

In October 2008, The Fostering Connections to Success and Increasing Adoptions Act of 2008 ("Fostering Connections Act") became federal law. In relevant part, the Fostering Connections Act requires states to exercise due diligence to identify and notify adult relatives within 30 days of children entering the foster care system. State child welfare agencies who fail to do so risk losing federal funding.

There are countless compelling stories from around the country of relatives who did not know that their grandchildren, nieces, nephews, or siblings had been placed into foster care until well after they had been placed or even adopted by a non-relative. By requiring identification and notice, the Fostering Connections Act seeks to involve relatives earlier in the process and tries to keep families together.

Section 103 of the Fostering Connections Act, Notification of Relatives, requires:

…within 30 days after the removal of a child from the custody of the parent or parents of the child, the State shall exercise due diligence to identify and provide notice to all adult grandparents and other adult relatives of the child (including any other adult relatives suggested by the parents), subject to exceptions due to family or domestic violence,…

According to the policies and practices of the Delaware Department of Services for Children, Youth and Their Families, the Division of Family Services ("DFS") notifies relatives of their rights by letter mailed to their last known address.  

This letter, which is commonly referred to as a "Relative Notification Letter," informs grandparents and other adult relatives of the name of the child currently in foster care and identifies several options for how the relative can remain involved in the child's life.

These options include:

1. Becoming a relative placement;

2. Becoming the legal guardian;

3. Becoming a foster parent for the child; and

4. Visitation and/or contact with the child.  

Relatives may also be invited to attend a Team-Decision Making Meeting prior to a child entering DFS custody for the express purpose of trying to avoid a foster care placement.  

If you are a relative interested in becoming a relative caregiver, legal guardian or foster parent for a child in DFS's custody, you should get involved as early in the process as possible. Do not delay in contacting the assigned DFS investigative or treatment worker to express your interest.  

As an attorney who specializes in this area, I hear all the time from relatives that they thought the parent was doing what they were supposed to be doing to be reunified with their child and that is the reason they did not come forward sooner. Sadly, a delay, even for the right reasons, can have dire consequences: termination of parental rights and non-relative adoption.  

Furthermore, for most children, there is a stigma attached to being in foster care that does not exist if placed in a relative's home. Research also shows that children fare better in a relative's home than in a foster care placement. As for the parents, they may still be entitled to reunification services offered by DFS even if the child is placed in a relative's home.

If you are a grandparent or relative of a child in foster care and wish to know more about your rights, consider scheduling an initial consultation with a family law attorney who specializes in this area.