How do you tell your children that you are going to divorce?

Breaking the news to children

One of the hardest parts of any divorce is telling the children. It is important that you tell them together about the divorce. It sends a clear message to your children that you are both capable of working together for their benefit. In addition, you have to tell all of the children at once so that each child hears the news directly from Mom and Dad and not from a sibling who heard it first. Let them understand that it was an adult decision; children need lots of reassurance that the divorce is not their fault. Reassure them that you are available and that you will always be there for them. Collectively and individually convey your unconditional love through words and actions. Make it clear to them that parents don’t divorce children. If your children are of different ages, do follow-ups with the older children in separate conversations.

The manner in which you break the news will affect the degree of their anxiety. Don’t let the meeting become a screaming match; the news will be difficult enough for them to handle so don’t cloud things further. Avoid the tendency to assign blame and try to incorporate the word ‘we’ when you’re explaining the decisions that have been made.
Let your children express their feelings. It is a fact that most parents only spend one and a half minutes per day actively listening to their children. Most of the time is spent giving instructions: ‘keep quiet’, ‘brush your teeth’, ‘comb your hair’, ‘get into bed’ and so on. Become active listeners and allow your children the time and freedom to express their own feelings.

Never try to win or lobby support from your children. Your children may try to be your friend out of fear of rejection, but in the end it will only confuse them. Children need to know that they can turn to you for support, not the other way around.

It is not important that you provide specific details about why you are planning a divorce, but your children may want to know why. Older children will know that this is a huge life change, and they may weigh that change against the reasons you give them. So be prepared to give some type of general explanation.

Your children will want to know where they will be living in future and with which parent, and what about their lives is going to change, so be honest about what you know and what you don’t know. The more detail you give to your children about where the departing parent will be living and when they will be seeing him/her, the better. They need to know that they will be able to maintain a quality relationship with both parents.

Parenting after divorce

You can divorce your spouse, but not your family. There are rules parents can follow that will make their lives easier post-divorce. It is extremely important for both parents to create what is called a ‘healthy post-divorce family’.

Realise that you may be completely out of sync with the each other. It may take months if not years for one of you to adjust to the reality of the divorce. It is not unusual for the parent who was considering divorce for a long time to be ready to move on quicker than the parent who may have been taken by surprise and is grieving the loss of the relationship. For the sake of your children, be respectful of these differences.

Don’t rush introducing a new partner. It’s vital that you keep new partners out of the picture for a while. The children must adapt first to the loss they have experienced.

Treat each other like business partners and give each other the respect that the position of parent demands. Many divorced couples treat their employees with more respect than they treat their exes. Yet, the job that has been entrusted to that person is far more important than any other in your life.

Share requests and communicate openly with each other. Let the children see that you communicate openly.

Listen attentively to your children when they speak to you. Encourage them to speak about their own concerns.

Don’t criticise each other. Children don’t need to be privy to adult conversations, and they don’t want to hear personal details about your relationship with their father/mother.

Don’t tell your children all of the unpleasant details of your divorce. Even if your ex was unfaithful. In the end, you may come to understand that you also contributed to the disintegration or your relationship. Feeding your children only one side of the story is misleading and immensely destructive. It is unfair to place your children in a position of having to side with one parent or the other.

Provide your children with routine, consistency and dependability.

Limit familial conflict at all costs. It is one of the most damaging things you can do to your children. Never criticise each other in front of your children. Children see themselves as extensions of their parents, and so they will feel like you are criticising them.

From the book “Everyone’s Guide to Divorce and Separation” – publisher by Random House, by Bertus Preller

Cape Town Attorney Bertus Preller writes South Africa’s first book on Divorce and Separation for the general public

Everyone’s Guide to Divorce and Separation – Kindle Version

Everyone’s Guide to Divorce and Separation

WHAT YOU SHOULD KNOW ABOUT DIVORCE AND SEPARATION …With one in three marriages now ending in divorce, it is imperative to be informed of the pitfalls, challenges and legal aspects involved in divorce and separation. Other rules and laws may apply to the many couples who prefer to cohabit rather than get married, but they, too, need to be informed of their rights when the relationship breaks down.

Everyone’s Guide to Divorce and Separation will help with the following crucial aspects:  your rights when you get divorced, and the monetary aspects relating to divorce (including the consequences relating to assets and the divisions thereof); maintenance issues;  all factors regarding the children, including how to implement a parenting plan, how much child maintenance will likely be required, and how to file for maintenance and child support;  the procedures to obtain a protection order when there is domestic violence or abuse; an unmarried father’s rights and how to acquire parental rights; and the law on cohabitation, same-sex marriages, and how to draft a proper cohabitation agreement. 

Everyone’s Guide to Divorce and Separation will prove to be an indispensable and comprehensive guide at a time when everyone needs expert guidance the most.

In the Foreword of the book, Judge Denis Davis says the following:

“Bertus Preller has filled a very significant gap with this timely book, in that in plain language, he provides a comprehensive guide to the broader community through the thicket of law that now characterises this legal landscape. Having said that, many lawyers, particularly those who do not specialise in the field, will also find great assistance in this work.

From engagement, through the legal nature of the ceremony, to the legal consequences of marriage or civil union and on to divorce with all its complex consequences, the reader will find clear explanations for any or all issues which may vex him/her during this journey.

Early on in the text, Mr Preller makes a vital point – litigation is truly the option of last resort in the event of a matrimonial dispute. The adversarial process which is the manner in which law operates is not at all conducive to a settlement of issues, particularly custody of minor children, which have a long-lasting and vital impact on the lives, not only of the antagonists but also the children who have not, in any way, caused the problem giving rise to the forensic battle.

Often in my experience on the Bench, I have wondered how such vicious and counter productive litigation can be allowed to continue. Lawyers will point to clients, whose disappointment in the breakdown of the marriage now powers such adverse feelings to their erstwhile partner, as the core reason for the ‘legal fight to the finish’. I would hope that, in all such or potential cases, the parties consult this work, which may add some rationality to the process or, in the occasional case, will enable the parties to reassess the legal advice they have been given, thereby allowing a non-litigious settlement of proceedings.

Whatever the context, however, it is important that arcane and often incomprehensible legal jargon be made accessible to those affected by the law. In this way, ordinary citizens can ensure that their rights work for them and at the same time they are assisted to grasp fully the implications of the obligations that the law imposes upon them.

In providing such a gateway to those who are or may be affected by this area of law, which given its nature is the vast majority of the country, Mr Preller has made a significant contribution to ensuring that, in this area, access to justice will become a reality.

- Judge Dennis Davis”

The book will be on the shelves of all major book stores on 1 May 2013 and may be pre-ordered on Amazon.com

Don’t mess up your children in a divorce or separation

The welfare of children in a divorce or separation is the most important aspect of any divorce. Although most couples believe children’s welfare is one of the most important factors to consider in a divorce, a great percentage of parents that divorce or separate see conflict as an inevitable part of the process and are determined to fight battles in court.

From time to time one comes across an intransigent parent who is incapable of objectivity when considering what is best for the child. It may well be that you do not like your partner, but the child’s view of the parent is different. He or she will have love and trust for that person, capable of transcending even the most dreadful scenes that may have been witnessed.

Unfortunately it occurs often that one parent use the machinery of the law in a wrongful manner in an attempt to “legally abduct” or alienate a child by making false allegations against or about the other parent.  Often one would find that a parent will for example falsely accuse the other parent of sexually molesting the child or accusing the other parent of emotional abuse towards the child. In a recent matter a mother who was the custodian parent brought an application for a protection order against the father on behalf of their 8 year old daughter because according to her the father abused the child emotionally, when the father in fact only disciplined the child. The father was trying to make telephonic contact with his daughter for days but the mother frustrated the contact by not answering the phone and replying to his sms messages. When the father eventually did manage to speak to his daughter he disciplined her over the phone for not contacting him. The child burst out in tears and the mother used the incident as the basis for a protection order against the father for alleged emotional abuse of the child. The court granted an interim protection order in the father’s absence and the father was only able to see his child under supervision, previously the father had contact with his child every alternate weekend. A social worker was then appointed as well as a psychologist to investigate. Needless to say the child was dragged through court appearances at the Children’s court.

A child prevented from seeing a parent, they still love will eventually turn the resentment against the one trying to enforce the unenforceable. Parents often fail to comprehend the impact on the children of the conflict in their relationship. The adults in the child’s life, can make the divorce and separation experience for a child much less harmful by being aware of several ways to help the child:

The child must feel and experience unconditional love from each parent.

The child must feel free of fault for the divorce and separation.

The child must feel that each parent respects the rights of the other parent.

The child must feel that he/she will be okay after the divorce and separation.

The child must feel that each parent will be okay after the divorce and separation.

Children sense and feel their parent’s emotions and especially the parent’s emotions toward one another. During a divorce and separation, adults experience some very strong and difficult emotions. It is difficult for a human being to understand how he/she could have so much love and passion for another person at one point in time, and then later have so much disdain and even hatred for that same person. It is okay for parents to talk to the child about the fact that they don’t love each other any more  but the child must hear, sense, and feel that while the parents don’t love each other any more and don’t want to live in the same house, they do respect each other’s rights as a parent to the child. For example, both parents should encourage the child to spend time with the other parent, to respect to the other parent, to obey the other parent, and to love the other parent. This can be very difficult when a parent thinks the other is making poor decisions.

The goal for divorced or separated parents should always be to maintain the best co-parenting relationships possible by moving past previous relationship issues and focusing on children’s well-beings. Conflict within a relationship or marriage where there are children involved or after a divorce or separation is the most harmful thing parents can do for their children’s development. If children go through their parents’ divorce, they have lost some access to both their parents to an extent. If the parental combat continues, the children have not only lost that access, they are still involved in that conflict and it harms children. Focusing on the children instead of the relationship problems can help divorced couples to be better parents, not messed up parents.

Source: http://voices.news24.com/bertus-preller/2013/03/if-you-do-mess-up-your-marriage-or-relationship-please-dont-mess-up-your-children-in-the-process/

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc. – Cape Town

Twitter: bertuspreller

Web: http://www.divorceattorney.co.za

New Divorce Attorneys at Abrahams and Gross Inc.

Divorce Attorney Melissa Ellis

Melisa Ellis joined Abrahams and Gross in Cape Town as a Junior Associate in 2013 and practises in the Family Law Department. Having attended Stellenbosch University she obtained a Bachelor of Laws degree in 2010. Melissa completed her articles at the law firm Heyns and Partners in Cape Town. Her areas of expertise are uncontested divorces, international divorce law, unmarried father’s rights, same-sex disputes and domestic violence matters.

Mariska Taylor Family and Divorce Law Attorney

Mariska Taylor joined Abrahams and Gross in Cape Town as a Junior Associate in 2012 and practises in the Family Law Department. Having attended Stellenbosch University she obtained a Bachelor of Laws degree in 2010. Mariska completed her articles at the law firm Van Der Spuy and Partners in Cape Town.

Mariska is regarded as a specialist on unmarried fathers rights and maintenance law and have dealt with numerous child maintenance and spousal maintenance cases before the maintenance court. In addition Mariska also specialises in divorce law, care and contact and parental responsibilities and rights disputes.

Divorce Statistics – South Africa

Trends

The 2011 data was published in December 2012 by Statistics South Africa. 20 980 divorces from civil marriages were processed. This indicates a decrease of 1 956 (8,5%) divorces from the 22 936 cases processed in 2010, which may largely be explained by some 2011 divorce forms that did not reach Statistics South Africa before the publication. The total number of divorces generally fluctuated over the period 2002–2011, with the highest number observed in 2005 (32 484) and the lowest in 2011 (20 980).

Population groups

Couples from the white population group dominated the number of divorces between 2002 and 2007, after which the black African couples had the highest number of divorces up to 2011. In 2002, 45,2% of the divorcees were from the white population group whereas 22,5% came from the black African group. By 2011, 35,8% of the divorcees were from the black African population group and 32,1% from the white population group. The proportions of the divorcees from the coloured and the Indian/Asian population groups were quite invariable during the ten-year period. However, there was a notable increase in the proportions of divorcees from the coloured population group (from 13,9% in 2010 to 16,6% in 2011).  The data show that there were more females 10 408 (49,6%) than males 7 212 (34,4%) who instituted divorce (plaintiffs). With the exception of females from the black African population who had a lower proportion of plaintiffs (39,7%), the proportion of female plaintiffs from other population groups was above 50,0%. That is, 56,8%, 56,2% and 52,4% of plaintiffs from the white, coloured and Indian/Asian population groups, respectively, were females.

Occupations that divorce

A high proportion of the plaintiffs (13,5% of the males and 19,4% of the females) did not indicate the type of occupation they were engaged in at the time of divorce. In addition, 27,3% and 30,6% of the males and females respectively were not economically active at the time of divorce. For specified occupations, most of those who divorced in 2011 were in clerical and sales occupations (11,5%) and managers and administrators (10,2%), with some differences observed by sex of the plaintiff. Husbands who divorced were largely managers and administrators (14,7%) while females who divorces were mainly in clerical and sales occupations (18,2%). Less than a quarter of males (23,6%) and females (20,2%) were in the professional and managerial occupations. Very few plaintiffs were in farming and related occupations.

Number of times married

The 2011 divorce cases for both males and females were mainly from individuals who had married once. About 80,0% of divorces for males and females were from first-time marriages compared to approximately 10,0% from second-time marriages. About 2,0% of males and females were getting divorced for at least the third time.

Age at the time of divorce

The median ages at divorce in 2011 were 42 years for males and 38 years for females, indicating that males generally divorced at older ages than females, with a difference of about four years. The median age for males was up from 41 years in 2010 while it remained the same for females for 2010 and 2011. The pattern of median ages in 2011 by population group shows that black African males had the highest median age (43 years) at the time of divorce while females from the mixed group had the lowest median age (34 years). The age difference at the time of divorce was highest for black African couples (five years) and was between two and three years for other couples. Although there are differences in the ages at which most males and females from the various population groups divorced, the age patterns are quite similar. The data reveal that there were fewer divorces among the younger (less than 25 years old) and the older (55 years and older) divorcees. For male divorcees, the peak age group at divorce was 35–39 for Indian/Asian and coloured population groups while the peak for the black African and white population groups was 40–44. In the case of females, the peak age group was generally at age group 35–39 for all population groups.

Duration of marriage of divorcing couples

The largest number [5 535 (26,4%)] of the divorces were for marriages that lasted between five and nine years. This group is followed by marriages that lasted less than five years [4 489 (21,4%)]. Thus, almost half (47,8%) of the 20 980 divorces in 2011 were marriages that lasted for less than 10 years. Divorces for the black African, coloured and Indian/Asian population groups occurred mostly to couples who had married for five to nine years whereas for the white population group those that divorced did so mostly during their first five years of marriage. Furthermore, the number of divorces for the white population consistently declined as the duration of marriage increased and this pattern is observed for marriages lasting for five to nine years for the other population groups.

Divorces involving couples with children

In 2011, 11 475 (54,7%) of the 20 980 divorces had children younger than 18 years. The proportions of divorces with children were quite high among the coloured population group (64,4%), Indians/Asians (57,8%) and the black Africans (57,1%). The distribution of the number of children affected by divorce shows that 37,4% were from the black African population group; 27,1% from the white population group and 20,2% from the coloured population group. There were 18 571 children (younger than 18 years old) involved in divorce indicating that, on average, there was between one and two children per divorce.

Source: http://voices.news24.com/bertus-preller/2013/02/latest-south-african-divorce-statistics  

Compiled by:

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

A:1st Floor, 56 Shortmarket Street, Cape Town, 8000

O: +27 (0) 21 422 1323

Twitter: @bertuspreller

In January divorces are on the increase

Source:

http://voices.news24.com/bertus-preller/2013/01/january-is-divorce-season 

Divorces follow the seasons and divorce season is upon us.

It is a well-known fact that divorces in January and February dramatically increase. Spouses do not want to upset the apple cart over the holidays, and they need a peaceful Christmas or New Year’s. And then, because they do not want to spend another lost year with that spouse of theirs, as soon as the holidays are over they pull the plug and file for divorce.

While there are no specific reasons this can be related to the fact that people don’t want to interrupt their summer holiday so they wait until it is over before filing for divorce. Couples are also forced to spend more time together on holiday during which time they come to the conclusion that they are totally incompatible. Some people reach the New Year with the idea that they do not ever want to have to spend another Christmas with exactly the same group of family. Another reason may be that couples stay together until the children leave the house, a daughter may be getting married, so her parents wait until after her wedding to file for divorce.

These days people work often far too hard to make a living, so they do not see enough of each other to keep their relationships working as they should. Instead of talking to one another about their problems they ignore them until Christmas when they appear with a vengeance.

Worse of all is that Christmas is expensive, and couples argue more about money than about anything else so when the pricey presents start piling up the arguments increase. People often overspend on money during the festive season, and when there is a financial breakdown, often the whole marriage breaks down and comes to a halt.

The reality is that divorce makes financial problems even more worse. In marriage, every burden is generally shared but in divorce the burdens are double, not just emotionally, but also financially. One house usually becomes two houses, one electricity bill, two electricity bills and two lifestyles to deal with so when a marriage breaks down everyone usually has to suffer.

If you are considering divorce, here are some tips to consider:

Can your marriage be saved? Divorce can be expensive and will have an emotional toll for you and your children that can last for many years. You must ask yourself if you have done everything possible to avoid divorce. If there is the slightest chance to reconcile counselling should be considered.

Have a plan. Become familiar with our divorce laws and your marital regime. The latter will be crucial when there are assets to be divided. When there are children involved make sure that the decisions that you take is in their best interests. Remember that a child needs the involvement of both parents post-divorce, so for the sake of your children act like adults. It is not always the divorce that is detrimental but the conflict in the divorce.

Build a support network, remember that divorce is also hard on those close to you your family and friends.

Save, divorce is not cheap. Besides legal fees, you will also need extra cash to create a new household. In addition, you should expect disagreements with your spouse about who pays what. Talk to your attorney about a temporary maintenance application (pending finalization of the divorce) and an application for a contribution to your legal expenses. Many spouses are unaware of the chance to obtain a court order against the other spouse for a contribution to his/her legal costs.

Protect your safety. Filing for a divorce may unleash angry and potentially violent feelings and reactions. Before you do file for divorce, think about how your spouse may react, and consider obtaining a restraining order if there is a history of violence in your family.

Put your children first. It is critical to reassure them that they are not at fault. It is also important that both parents tell the children that they are loved, as angry as you might be, it is imperative not to belittle your spouse in front of your children.

Get your documents in order. Before you do file for divorce, get all important documents in order, make copies and start your own file. You should know the status of all accounts, assets and liabilities, the balances of current and savings accounts, debts, the sources and the amount of income entering the home each month as well as the monthly expenses.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc. – Cape Town – 021 422 1323

Follow him on Twitter: @bertuspreller

Web: www.divorceattorney.co.za

DECEMBER … THE MONTH WHEN CHILD ABDUCTION IS ON THE INCREASE.

Source: http://voices.news24.com/bertus-preller/2012/12/december-the-month-when-child-kidnapping-is-on-the-increase/

December is not always the month of fun, happiness and laughter for all parents. For some it could also be a nightmare, particularly when a child is abducted. It is typically in holiday season when abduction of children is on the increase. The increase in parental child abduction cases is a major cause for concern. Before or during school holidays it is one of the most common times for a child to be abducted by an estranged parent. Parental child abduction is not faith or country specific. The number of children abducted and taken abroad by an estranged parent has risen by 88% in just under a decade, according to new government figures released in the United Kingdom. In the UK it is estimated more than 140,000 children go missing every year, one every three minutes. The statistic was calculated by the Child Exploitation and Online Protection Centre, which includes teenage runaways, parental abductions and kidnappings. According to the statistics last year alone the UK Foreign Office’s Child Abduction Section fielded an average of 4 calls per day to its specialist advice line, more than half of which were new cases. Cases were worked on in 84 different countries, showing just how widespread the problem has become.

Each year, 800,000 children are reported missing in the United States, including some who are lost, injured, have run away from home or are abducted. Of those who are abducted, 200,000 are taken by family members, typically during a custody battle, while 58,000 involve non-family members who are familiar to the child and who typically have targeted the child.

Trafficking in children is a global problem affecting large numbers of children. According to UNICEF some estimates have as many as 1.2 million children begin trafficked every year.

According to figures that was released by the South African Police Service Missing Persons Bureau a child goes missing every six hours in South Africa, it means that 1460 children per year goes missing. According to Missing Children South Africa an organisation registered with Department of Social Development at least 13% of these children are never located.

There are 3 types of abductions:

When a stranger takes a child away for criminal purposes (such as sexual assault or ransom – the latter would be classified as a kidnapping in South Africa). When a child is stolen to be brought up by the abductor. When a parent removes a child from the other parent’s care.

Viewing the Facebook profile of Missing Children SA one grasps how common child abduction in South Africa really is. There are plentiful posts of children being abducted by one of the parents. One of the posts on Facebook read: “Christine Kayla Bodden (9) was last seen on the 8 December 2012 with her mother in January in Masilela Drive (General Louis Botha Avenue), Constantia Park, Pretoria, near Hatfield Christian Church. Christine was wearing purple floral shorts, a white t-shirt and flip flops. They may be in the Pretoria suburbs Arcadia / Sunnyside, or may be seeking accommodation at backpacker’s lodges around SA”.

Not long ago there was the case of Stefano Cavinato an Italian American father of a little two year old boy called Matteo Cavinato. Matteo’s mother a South African and was living in the United States since 1995. During 2011, she fell pregnant from a man of Botswana and wanted to move to South Africa with the child. The parties became embroiled in litigation in the United States to determine care and contact (custody) over for the child. An interim order was granted for the parties to have joint custody and residence. However, on 4 February 2012, the mother, Nontobeko Tsotetsi, boarded a plane in the United States without the father’s knowledge or consent, using a false passport for the child and arrived in SA the next day.

Her conduct was in breach of the Hague Convention on International Child Abduction, and the South African Central Authority (Family Advocate), acting on instruction of the American Central Authority, brought an application for the child to be returned to the USA so that the United States court could continue to determine issues the parental responsibility disputes. The High Court in Cape Town then was then approached and the return of the child was ordered. However, the mother sent the father a text message to say she would rather die, and disappeared with the child. The police, courts, Family Advocate and private investigators were all involved in the search eventually the mother and child was found and the child was returned to his father in the United States.

Phillip Dexter well-known politician also opened a case of abduction against his ex-wife last year for apparently leaving the country with his five-year-old daughter without his consent.

Many countries have adopted the Hague Convention of 25 October 1980 on the Civil Aspects of International Child Abduction. This is a treaty designed to expedite the return of children back to their country of habitual residence, in cases where they have been wrongfully removed. The Hague Convention aims to curb international abductions of children by providing judicial remedies to those seeking the return of a child who has been wrongfully removed or retained. It provides a simplified procedure for seeking the return of a child to his/her country of habitual residence.

As a matter of fact, the child can remain in the care of the abducting parent, if they choose to return together with the child. The elements of a cause of action for the return of an abducted child under the Hague Convention are that:

- the child was habitually resident of the country from which the child was abducted;
- petitioning parent had either sole or joint rights of custody of the child either through a custody order or de jure (by operation of law); and
- at the time of removal, petitioning parent was exercising those rights.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

E: bertus@divorceattorney.co.za

Twitter: @bertuspreller