FAMILY-LAW-LAWYERS-SOLUTIONS-TO-DIVORCE-CHALLENGES

 

Divorce Action Plan

by Laura Johnson

The following information is excerpted from the Divorce Action Plan in the Appendix of Divorce Strategy. There are only 5 steps for each divorce phase shown here. The Divorce Action Plan in the book lists many more things to do and not to do.

Two of the most difficult things for you to do when you're involved in a divorce is to concentrate on small details and to keep on track with your game plan. The Step-by-Step Divorce Action Plan is designed to keep you focused and organized. Refer to it during the different phases of your divorce. If possible, view your financial divorce as the separation of a business partnership.

Before Filing for Divorce

This is the time when you and your spouse are discussing the possibility of divorce. You may be in marriage counseling or individual therapy to save your marriage. It's also the time to start your financial planning for a possible divorce.

• Gather historical financial documents such as tax returns, banking records, real estate purchase and sale documents and any other records pertaining to your assets. Use the information in Divorce Strategy to prepare your preliminary worksheets.

• Find a good divorce lawyer using the information in the Divorce Lawyer Questionnaire to help you in your search. Use your completed Personal Information Planner to more efficiently utilize your time when you interview a prospective lawyer to learn about your potential risks and results if the divorce truly occurs. Start your divorce financial planning.

• Avoid stressful situations and conflict as much as you can. Plan any pre-divorce discussions with your spouse so that they occur in a neutral location. Avoid involving your children, friends and relatives in your divorce.

• If you and your spouse can have reasonable, somewhat amicable discussions about settlement, begin pre-settlement negotiations. Start with a full disclosure of the information about your income, assets, liabilities and expenses.

• If divorce is imminent and you and your spouse can't communicate to work out your divorce settlement or if one of you is more in control and more powerful than the other, move on to the next step. Don't waste time and energy on trying to work out an agreement until you are both on a level playing field.

Divorce Filed and Pending

Once you or your spouse have made the decision to go ahead, certain events occur whether you want them to or not. It is an extremely stressful phase. Do things in small chunks. Avoid trying to do everything at once. Manage your time so that you have a set relaxation period every day. Pay more attention to your needs and to those of your children.

• If your spouse hasn't already done so, file for divorce. Your lawyer will file a petition, financial statements and other documents with the court. This begins the legal divorce process. Ask your lawyer to explain the progression of a divorce case through the court system where your case is filed.

• Take any mediated or negotiated settlement to your lawyer for review and comments. If you and your spouse do not have an agreement, work with your lawyer to come up with a proposal or encourage your spouse to submit a proposal to you and your lawyer. Don't turn control of your divorce over to the lawyers.

• Work on your divorce financial plan using the worksheets and ideas in Divorce Strategy. Research other sources for additional information. Organize your paperwork. Keep it up to date.

• Make your own decisions. Be reasonable and receptive to new ideas and constructive suggestions. Accept responsibility for the outcome of your divorce. Work toward a settlement of your divorce. If settlement of all issues is impossible, agree with your spouse on as many issues as possible. Reserve any remaining disputes for a trial.

• Make plans and set goals for your finances after the divorce. Be realistic. Review and revise your goals on a regular basis as your circumstances become clearer.

After the Divorce

Your legal divorce is over. Now the wrap-up of your financial and emotional divorce begins. Keep meticulous records of your financial separation. Plan for your future. If you have residual feelings of anger or bitterness, get counseling to work through your feelings. If not, you will always be held back by your past. Strive to keep your emotional divorce separated from your financial divorce. Don't confuse child custody and relationship issues with money issues. See the Divorce Recovery Journal for some great tips for help you through the healing process after divorce and to help you get on with life.

• Do what needs to be done to transfer ownership of assets. If you haven't already done so, close all the credit cards, charge accounts or bank accounts in joint names so your ex-spouse's name is removed from the accounts.

• Keep copies of any support checks you have paid or received. Keep an ongoing accounting and ledger of the payments. Make sure all the necessary documentation has been done if payments are going to be made by a wage assignment or through the courts. Keep the employer and/or the court clerks advised of any address change. Prepare and send bills to your ex-spouse if late payments or account balances are a problem.

• Prepare a financial plan for the next year. Set short, medium and long range goals. Make arrangements to pay any bills left over from the divorce or marriage. Start saving whatever you can, even if it's only a few dollars each month. True Prosperity has some terrific ideas to help you with your financial planning.

• Prepare a post-divorce timetable for future events, such as an anticipated change in an amount of child support due to a child graduating from high school or a date when you are to pay your ex-spouse a certain amount of money.

• Live a happy, fruitful and prosperous life after your divorce. It's the best revenge you can have against your ex-spouse.

 

A Child's Advice for Divorcing Parents

Jill Greenstein is a psychologist who works at the Putnam Valley Elementary School located about 50 miles northwest of New York City. Her work with the students at the school has involved a group called Banana Splits.

Mrs. Greenstein says, "Banana Splits groups are for children who are experiencing a loss of family cohesiveness through separation or divorce. Last year (1996-97), many children got together in these groups to work with me on understanding their family situations, sharing their feelings and experiences and giving and getting advice. These groups help children handle the feelings often associated with divorce and separation.

After meeting for the year, these children came up with 'advice for parents'. Although presented as advice for parents undergoing separation and/or divorce, this advice is appropriate for all of us!"

Advice for Parents

• Spend alone time with all your children.

• Tell the truth and don't break promises or lie.

• Don't fight, yell, etc. in front of your children -- it makes your children scared and worried.

• Help your children with their homework.

• Share important information with your children.

• Listen to your children and pay attention to them.

• Have patience with your children and try not to get too angry.

• When you're angry, try not to take it out on your children.

• Communicate your feelings.

Mrs. Greenstein also advocates the following Bill of Rights.

Bill Of Rights Fof Children Whose Parents Are Separated/Divorced

• The right not to be asked to "choose sides" between their parents.

• The right not to be told the details of bitter or nasty legal proceedings going on between their parents.

• The right not to be told "bad things" about the other parent's personality or character or behavior.

• The right to privacy when talking to either parent on the telephone.

• The right not to be cross-examined by one parents after visiting the other parent.

• The right not to be asked to be a messenger from one parent to the other.

• The right not to be asked by one parent to tell theother parent untruths.

• The right not to be used as a confidant regarding the legal proceedings between the parents.

• The right to express feelings, whatever these feelings may be.

• The right to choose not to express certain feelings.

• The right to be protected from parental warfare.

• The right not to be made to feel guilty for loving both parents.

Advice for Parents and the Bill of Rights were reprinted with permission from Jill Greenstein.

 

 

Child Support & College Support

by Laura Johnson

Do you, as a divorced parent, have a legal duty to pay for your child's college education? (not in California) The answer is yes, no, or maybe depending upon the state in which you are divorced.

You could be ordered to pay for all or a portion of your child's college education if your divorce state has a law giving a court the power to award college support, also called post-secondary or post-minority support. College support may be in addition to child support, a part of child support, or a separate payment after regular child support ends. It can be used to pay for an education at a college, university, vocational school, or other type of post-secondary educational institution.

A court having the power to order college support may consider several factors when ordering you to pay for your child's college education. Some of these factors are:

• you and your ex-spouse's financial resources,

• your child's financial resources,

• your child's aptitude, ability, goals and interests,

• you and your spouse's expectations for your child when you were living together,

• standard of living the child would have had if you had not divorced,

• you and your ex-spouse's standard of living,

• you and your ex-spouse's level of education,

• the post-secondary education of the child's siblings or half-siblings,

• the nature of the post-secondary education your child wants, and

• your child's age.

These factors vary from state to state, but logic demands that each one should play some part in the decision-making process.

Even if you and your spouse don't get divorced in a state that has a law for some form of college support, you can agree to the payment of college support. The agreement must be in writing and must clearly and specifically describe each parent's duties regarding the payment of college support. It may also have one or more specific limitations to act as a guide or cap. Your state may have case law (decisions from an appellate court) setting out what terms must be in a college support provision so that it can be enforced by a court, either in a separate contract suit or by the divorce court.

Examples of some types of limitations you might find in the college support provisions of a divorce agreement are:

• limiting you and your ex-spouse's college support obligation to a maximum number of consecutive semesters, with summer or winter abbreviated schedules not counting as a semester

• capping the annual payment that you or your ex-spouse is responsible for paying

• tying each of your respective portions to the then-cost of a particular educational institution, usually a state college or university, the college the parents agree the child can attend, or the school the child is attending at the time of the agreement

• describing the items to be included as post-secondary educational expenses, such as tuition, room & board, sorority or fraternity dues, books, fees, etc.

• detailing how any grants, scholarships or student loans taken out by the child effect each of your obligations

• Describing how any educational saving accounts are to be applied to each of your obligations.

Many parents wonder what responsibility their child has regarding college if his or her parents are under a court order to pay for college. Once again, the answer depends upon the law in your state or the particular facts of your family's situation. Some states have imposed requirements that a child must meet to qualify for college support. These requirements may be:

• acceptance and enrollment in a post-secondary educational program within a certain time period after graduation from high school,

• taking enough credit hours each semester so that he or she is considered a full-time student achieving acceptable grades in each course so that he or she remains qualified to re-enroll in the same school the following semester,

• providing a copy of grade reports to each parent,

• continued enrollment so that the college enrollment is in consecutive semesters, and/or

• attendance in the courses he or she enrolled in.

If you are ordered to pay college support for your child, don't assume that you are relieved of the obligation if your child doesn't qualify for your continued support based upon the items in this list. It may take either an express agreement between you and your ex-spouse or the order of a court to officially relieve you of any responsibility.

If you are the noncustodial parent ordered to pay college support, do you still have to pay your ex-spouse child support? The answer is: maybe,  yes, or no depending upon your state law. In some states child support terminates, as a matter of law, when the child reaches the age of 18. In others, the age of termination is 19 or 21. Be aware though, even if your child has reached the age of termination in your state, he or she may still qualify for continued child support under certain circumstances, such as enrolling and attending a post-secondary educational program or having a physical or mental disability that precludes the child from becoming self-supporting. If you are in doubt, always consult with a lawyer about whether child support stops, is reduced, or stays the same when college support is also being paid.

When ordering post-majority support the court could decide to look at the following expenses that a custodial parent might incur for a child who is attending college:

• transportation expenses to and from school,

• living expenses while at home,

• one time expenses to buy necessary items for the child to set up a "home away from home",

• the cost of health insurance,

• the cost of medical and dental expenses that aren't paid by health insurance, and/or

• and any other type of expense necessary for the child's reasonable living expenses while attending college and living away from home.

In some cases the custodial parent has to pay for the child's college support before there is a court order instructing the noncustodial parent to contribute. In those situations, the court might have the ability to order the noncustodial parent to reimburse the other parent for all or a portion of the child's expenses that have already been paid. Alternatively, the court could make an award of college support retroactive to a certain date. So, in addition to an order for future college support, there could also be a lump sum awarded for past support.

If you are ordered to pay both child support and college support, can you get the amount of child support reduced? After all, you'd think that the custodial parent's costs for a child who is living away from home nine months out of twelve wouldn't be as much as when the child lived at home full time. Some courts have said that the amount of child support should be reduced to reflect decreased expenses. Others have said it shouldn't be reduced because the custodial parent still has costs to maintain a home, to provide transportation, and to pay for the child's necessities. This decision is very fact specific based upon each parent's legal obligation to pay for the child's needs while he or she is attending college. In some cases, any expenses that you voluntarily pay might impact a court's decision, but you need a track record to support your claim.

Can you pay your portion of college expenses directly to the school? Again the answer is maybe. It is another of those things that is very fact specific to your family's situation.

Can you pay the child support directly to your child instead of your ex-spouse? Maybe, especially if your child is living off campus and has rent, utility, grocery and other regular bills to pay. In some situations, you may be able to pay a portion of the support directly to your child instead of the full amount. That way your son or daughter has funds to pay for direct expenses while at school and your ex-spouse receives a contribution from you toward your child's housing, clothing, transportation and other fixed expenses.

The age of your child affects whether a court will order college support at the time of a divorce or modification. Absent an agreement between your and your ex-spouse, it's highly unlikely that a judge will order college support for your child unless he or she is in high school.

Your child's financial resources might make a difference in the amount of college support you have to pay. It depends upon the nature and amount of the resources. Savings, investments, trust income or assets, other liquid assets, or income from sources other than your child's employment are some examples of a child's money that might be used to pay college expenses. Anything left unpaid after the depletion of your child's money could be paid by you, your ex-spouse, or split between you.

The following items are several things you can do to plan for your child's post-secondary educational expenses:

• investigate prepaid tuition plans at your state university or college,

• invest in a Coverdell Education Savings Account,

• set up a special savings account for college expenses,

• help your child apply for grants and scholarships, or

• apply for parent loans.

Student loans will not help reduce your out-of-pocket costs as an obligated parent. Most courts won't permit you to reduce the amount of college support you are ordered to pay by the amount your child is able to borrow. Likewise, if you have a tuition remission program available to you as an employment benefit, you probably won't be able to use that benefit to cover your portion of the college expenses, while your ex-spouse must use money to pay for his or her portion. Courts generally rule that both parents get the benefit of a tuition remission program.

There is a very small body of law, primarily in Pennsylvania, supporting the claim that it's unconstitutional for a court to order divorced parents to pay for a child's college education. After all, parents who are not divorced have no legal obligation to pay for their child to receive a college education. Why should divorced parents not be afforded the same rights and protection as parents who aren't divorced? See Curtis v. Kline, 666 A.2d 265(1995).

The following states have specific statutes or case law that give courts the authority to order college support in some form: Alabama, the District of Columbia, Georgia, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Missouri, Mississippi, Montana, New Hampshire, New Jersey, New York, North Dakota, Oregon, Rhode Island, South Carolina, Utah, West Virginia and Washington. Even though your state isn't included in this list, you and your spouse can agree, formally or informally, for the payment of college support.

Divorce and Federal Employee Retirement

by Laura Johnson

A few months ago, Debbie wrote asking about her interests, as the spouse of a federal employee, in her husband's federal employee retirement benefits (retirement annuity). Her husband claimed she couldn't get any of his federal employee annuity as federal law didn't permit its division. He was mistaken.

Unlike private pension plans, the Federal Employee Retirement System (FERS) and the Civil Service Retirement System (CSRS) are born totally from federal laws and regulations. In a divorce, the division of a FERS or CSRS benefit is done by specific language in a court order, not by a qualified domestic relations order. There are very strict and specific deadlines that must be met by anyone wanting to receive a portion of the employee's annuity. In addition, there are certain ancillary benefits a divorced spouse could receive only if the court order specifically addresses these benefits.

The administration of FERS and CSRS is handled by the Office of Personnel Management (OPM). A court order acceptable for processing is required by OPM before it will do anything with a federal employee's retirement annuity.

The court order can divide the retirement annuity by a specific dollar amount or by a specific percentage, up to 100% of the retiree's net annuity. If the divorced spouse wants to share in any future cost of living allowances (COLA), the court order must provide for it, particularly if the division of the retirement benefit is expressed in a dollar amount. A percentage division of the benefit generally includes COLA's. In either event, the language in the order must give clear instructions to OPM about how it is to divide the employee's retirement benefit and how the former spouse's share is to be determined.

The payment of a divorced spouse's share in the employee's benefit will commence when the employee retires or reaches retirement age as defined by FERS or CSRS. If the employee dies before then, no annuity payments will be made. Likewise, annuity payments will terminate when the retired federal employee dies.

Reduced payments will continue to the divorce spouse only if he or she also receives a former spouse survivor annuity per the court order. This annuity must be awarded at the time of the divorce and before the federal employee retires. Or, the employee can voluntarily elect to provide the survivor annuity for his or her divorced spouse. The divorced spouse is entitled to receive a former spouse survivor annuity only if he or she is also awarded a portion of the employee's retirement annuity.

There are also specific requirements for the length of service that the employee must work to be eligible for an annuity. If the employee doesn't meet the minimum requirement, there will not be any benefit paid to either spouse, except for a refund of the employee's contributions. In fact, even if the employee is fully eligible to receive a monthly annuity, he or she can still elect to take a lump sum refund of contributions upon retirement instead of the monthly annuity payment. A court order acceptable for processing should address the division of a refund of contributions, just in case the employee chooses to take a refund instead of the annuity.

There is another type of federal employee retirement benefit called a thrift plan. The employee contributes a percentage of income to the plan. It's similar to a 401(k) plan, but is operated by an agency of the federal government. It is administered by a different department than the FERS or CSRS, so the court order dividing the asset will have to comply with additional requirements to be acceptable.

For additional information about divorce and a federal employees benefits programs, federal employee pay rates, and more visit these web pages:

Federal Retirement Programs: Other Retirement Publications for booklets, especially the guidebook for family law attorneys. The booklets can be downloaded or printed from your printer.

Salaries and Wages for current pay information for federal employees.

http://www.opm.gov/ for more information from the Office of Personnel Management. Be sure to read the sections on health insurance and life insurance.

http://www.tsp.gov/ for information about the Thrift Savings Plan.

Here's a short list of key things to remember about federal employee benefit plans and divorce.

1. CSRS and FERS are different from private pension plans and cannot be divided by a Qualified Domestic Relations Order.

2. You need specific, statutory language in a court order acceptable for processing by the Office of Personnel Management.

3. The former spouse's benefit terminates when the federal employee dies, unless the former spouse has an interest in a survivor annuity.

4. The Thrift Savings Plan is a separate retirement plan, is administered by a different agency than the OPM and also requires specific language in a court order.

5. There is a Federal Employee Group Life Insurance (FEGLI) program.

6. There are federal health insurance benefits.

7. Federal employees under Civil Service Retirement System do not contribute to social security, but can have a TSP account in which they contribute up to 7% of their basic pay. Federal employees under the Federal Employee Retirement Systems (FERS) contribute to social security. Their retirement
   package is three-tiered: (1.) Annunity contributions to FERS, (2.) Social Security contributions, and (3.) Thrift Savings Plan up to 12 percent of their basic pay plus a 1% contribution and matching contributions (up to 5% on a percentage scale) from the employing agency.

 

Interstate Divorce: Getting a Divorce Across State Lines

by Laura Johnson

Susan from California asked, "Can I file for divorce in California if my husband lives in New York? Or, do I have to file in New York?" The answer is that there's no easy and straightforward answer. Maybe yes, maybe no and maybe in both. It just depends upon the facts of Susan's situation, the laws of California and the laws of New York. It revolves around the questions of which state has jurisdiction to enter an enforceable order that handles each legal issue involved in the divorce and which state has proper venue if both states could have jurisdiction.

Jurisdiction is the power and authority that a court or a judge has to hear and determine a particular type of case and issue. Personal (in personam) jurisdiction and subject matter (in rem) jurisdiction are the two types that most frequently come up in an interstate divorce.

A court has to have personal jurisdiction over "the person" of each party to a lawsuit in order to enter an enforceable judgment. This means that each person must have been properly served notice of the pending lawsuit and, in some instances, must submit to the jurisdiction of the court by filing an entry of appearance in the court file.

Subject matter jurisdiction is the power of the court to enter an enforceable order regarding the issues in a divorce. Examples of issues are: child custody, disposition of certain types of property, child support, and spousal support. The court must also have the statutory authority to hear a family law case.

Venue refers to which state court is the right one for holding a trial when more than one court has subject matter jurisdiction. A court may have jurisdiction without venue. It cannot have venue without jurisdiction.

In Sally's case, for example, she and her husband had been separated for several years. Sally had moved to California two years ago and her husband had remained in New York. She didn't know where he presently lived in New York because he had moved over a year ago without giving her a new address. They had no property together, no children, and neither of them needed support from the other.

In essence Sally had become "unofficially divorced" over two years ago. Now, she just wanted to make her "divorce" official and legal. She filed for divorce in California and requested that the divorce papers be served by a process server in New York at the last address she had for her husband. The process server couldn't locate her husband, so the papers were returned to the California court as unserved (non est). Sally's next step was to give her husband notice of the divorce action through "service by publication", a legal process involving the running of a written notice of the lawsuit in appropriate legal newspapers. Upon completion of the publication process, Sally's lawyer helped her get a legal divorce, and Sally is now legally a single person.

Sally's situation was relatively simple compared to what occurs in some divorces. Take Jeri and James' divorce for example. Jeri and James were married in their high school hometown in Iowa, lived there for six years, and had two children. As part of his job, James was transferred to Illinois.

The family sold their home in Iowa, bought a new one in Illinois and everyone settled into their new home and community. Jeri traded in her Iowa driver's license for an Illinois one. The children began attending school. Five months after the move to Illinois, Jeri received a letter from a lawyer saying that her husband was going to file for divorce and wanted to mediate the divorce instead of litigation.

When confronted, her husband admitted that he had been having a relationship with a coworker for a number of years and had arranged the transfer to be with her when he found out she was being transferred to Illinois. He also admitted that he had planned to wait until they lived in Illinois to file for divorce because he had been told that it would be better for him to get a divorce in Illinois rather than in Iowa.

Jeri called an experienced divorce lawyer in her Iowa hometown and told him the story. He advised her of her choices based upon the jurisdiction of each state, particularly about which state had jurisdiction over child custody. She packed up her children, some personal belongings, and returned to her hometown in Iowa. Her soon-to-be ex-husband arrived home that night to find a note telling him where she and the children could be reached.

To make a long story short, their divorce lasted a long time and cost them each a lot of money, much of it over which state had jurisdiction and proper venue to deal with the issue of child custody. Six years, many hearings, two trials, two appeals, and over $100,000 in legal fees later, they agreed to settle the custody issue.

Their legal battle was over jurisdiction and venue. Their personal agenda was probably something else.

In cases like Jeri and James', there is a law called the Uniform Child Custody Jurisdiction Act (UCCJA) that plays a part in determining which state has jurisdiction and venue. The UCCJA is a federal act that has been adopted, in full or in a version thereof, by most of the states and is a part of the family law statutes.

There's another federal law that came into the picture in Jeri and James' case. It's the Parental Kidnapping Prevention Act (PKPA) which also deals, in part, with which state has jurisdiction to make a child custody decision when a parent removes a child from the other parent's custody without that parent's permission.

Another example of subject matter jurisdiction can be told in the case of Sue and Frank. They were married in Missouri and had a child in Missouri, moved to Texas, got divorced in Texas where Sue got custody of their child and Frank was ordered to pay her support. Then Sue and their child returned to Missouri, with Frank's permission.

Several years later, when their child was a senior in high school, Sue filed a motion to modify the Texas divorce judgment in the Missouri court asking the Missouri court to increase the amount of child support and to extend the date for termination of the support obligation to comply with Missouri law instead of Texas law. Her ex-husband was served the Missouri papers and hired a Missouri lawyer to contest subject matter jurisdiction.

The Missouri court modified the Texas judgment, using Texas law--not Missouri law. The Missouri court used the power conferred upon it in accordance with the Uniform Interstate Family Support Act, another federal act, of which Missouri and Texas had each adopted its own version.

By now you probably realize that interstate divorces can either be very simple and relatively inexpensive or very complex and very, very expensive. It all depends upon the facts of each marriage, the laws of each state, the issues to be litigated, the legal opinion you get from a lawyer about which state is more advantageous to your position, the state that is most likely to win any battle over jurisdiction and venue, your spouse's position on any contested issues, and whether the possible outcome will be worth the risk and cost to you, your spouse, or to your combined estate.

Divorce Lawyer Questionnaire

by Laura Johnson

One of the most frequently asked questions about hiring a divorce lawyer is, "What questions do I ask?" To help you ask the right questions so you get the answers you need during an interview of a divorce lawyer, the Divorce Lawyer Questionnaire is copied from Divorce Strateg.

Attorney Questionnaire

Use the following list of questions to conduct an interview and learn information about a divorce lawyer before you hire that person to represent you.

One question that isn't on this list is: "Given the facts of my case as I have presented them to you, what do you believe is the best, reasonable outcome that I can expect to get from the divorce?" Unless you are paying for a consultation, most divorce lawyers will not answer that question in full until after you have hired him or her to represent you in your divorce. Even then, some divorce lawyers will "hem and haw" and tell you that there's no way to know what the outcome be as it is all in the hands of the court. You shouldn't accept that answer. The answers to these types of questions are very important to you as they will become the basis for your evaluation of any settlement proposal. Keep pushing for specific answers to specific questions.

 

Divorce and Your Real Estate

Dispostion of the family home frequently causes problems in a divorce. Custodial parents may want to hang onto the home for the sake of the children. Perhaps one or both spouses can't afford to purchase a similar replacement home. Much depends upon the amount of equity in the home and the ability of each spouse to keep it.

The following is a portion of a chapter from Divorce Strategy that contains information to get you started on the road of evaluating your divorce decision about your real estate.

For most couples the family home is the highest valued asset they will have to divide in their divorce. Its division is usually fraught with controversy for varying reasons. It may be difficult to value, is not readily converted to cash, costs a substantial amount of money to maintain and has implications of federal and state tax liability. As if all those things were not enough, your family's emotional attachment to your real estate, in particular a family or vacation home, can cause you to make an irrational or poor decision at the time of the divorce. Your family may be haunted by that decision for years after your divorce.

Some questions that you need to answer are:

• Should you sell the family home?

• Do you keep it until the children are grown?

• Should you keep the home and buyout your soon to be ex-spouse, or vice versa?

• Can either of you afford to keep it after the divorce?

The answers to these questions and others can help you avoid or plan for problems associated with your real estate. Historically, the family home is the asset that most often causes controversy both before and after a divorce.

The principal reason for this problem is the timing of the sale of the home and the division of the net proceeds. Both events frequently occur some time after the divorce. In addition, couples seldom plan as they should for the payment of household maintenance and upkeep during the pendency of the divorce. At first glance the family home appears to be the easiest asset to identify and describe. For purposes of a divorce, the description of your ownership interest in your home and other real estate can be very complicated with pitfalls for the unwary. As with the division of personal property, the rules and laws regarding the division of real estate vary from state to state. Consult with your lawyer about your rights and responsibilities after you have read this section and put together your worksheets.

Before you see your lawyer, gather the necessary documents and records about each piece of real estate. Get the documents not only for the property titled in your name, but for all the property in which you or your spouse has an ownership interest. This includes property that you own in either of your names alone, jointly with another person or property owned by a trust or business in which either of you have an interest.

Key Factors

There are six key factors about your real estate that affect the handling of the asset or the distribution of the net proceeds from the sale of the asset in a divorce. The factors are:

• identification of the type of real estate and the type of ownership interest you have in the property

• the ownership history of your real estate

• real estate, income and capital gain taxes

• debts, such as loans and tax liens, that are secured by the real estate the value of the real estate

• the plans you must make to pay for and maintain the real estate during the pendency of the divorce and afterward

The following sections describe in detail these six factors.

Identification

As previously mentioned, most couples own an interest in real estate in the form of a family home. Other types of real estate that you may own are vacation property, rental property, commercial or office buildings, buildings on land leases, vacant land, mineral rights and other types of special use real estate. Whatever type of real property you may own, each one has unique features that could affect how you can utilize it in your divorce, especially in the context of a settlement agreement. The following sections of this chapter contain examples of some of the methods you might use.

How you hold title to the real estate may determine, in large part, what interest you and your spouse have in the real estate. Most married couples own property as tenants by the entirety and each spouse has an undivided one-half interest in the property. A divorce ends the ownership in tenancy by the entirety. Joint tenancy is similar to tenants by the entirety except that the owners are usually not married to one another. In joint tenancy and tenants by the entirety, if one of the owners dies, the deceased person's interest passes to the other owner by operation of law. Another way of holding title is as tenants in common. The interest owned by each tenant in common is divisible and can be inherited by the owner's heirs. This is customarily the way that unrelated persons, including divorced people, own real estate together. It may be the way that you and your ex-spouse own your real estate after the divorce.

History of Ownership

It is important to establish and document the history of your real estate ownership because each parcel's history affects the property's net worth. For example, real estate has tax implications that are usually assumed by the person receiving it in a divorce. Additionally, the history of your real estate helps you determine if the real estate that was owned before the marriage or inherited during the marriage is marital or separate property. Finally, the history of the land usage enables you to analyze the financial and environmental risk, if any, you could incur from owning the property.

Prepare a history of your home ownership for each property you have owned, including those which you have sold. Make notes about any miscellaneous information that is important about the real estate. Put together any source documents you used to back up your information. Organize your documents so that your history table is the first document in your real estate file. Then attach the supporting documents in descending or ascending order to the file folder. Some of the relevant information you need for each piece of real estate is:

• Address, purchase price and date purchased

• Down payment amount and source of funds for the down payment

• Original loan amount and current balance

• List of improvements you have made and their cost depreciation claimed on any prior year's tax return

• Insurance proceeds received from any claim

• Costs to repair any damages or restoration costs

• Date sold, sale price, costs of sale and net proceeds

 

Recognizing Abuse in A Legal Divorce

by Laura Johnson

Abuse isn't limited to acts of physical battery and domestic violence. It can be emotional or psychological, too. The methods used by an abuser can be very subtle or extremely direct. Abusers can be male, female and even children.

When a divorce involves the ending of a marriage in which abuse is a facet of the family dynamics, divorce lawyers and judges have difficulty in knowing just how to deal with it, unless it is physical abuse or the threat of physical abuse that puts a spouse or child in immediate danger or fear of harm. There is legal authority for how they must deal with domestic violence, physical abuse, harassment or stalking that puts a person in fear of his or her safety.

Their difficulty arises, not from a failure to acknowledge and appreciate that an act of emotional or psychological abuse or an isolated act of physical abuse has occurred, but from several other factors. First and foremost is that divorce lawyers and family court judges must build a protective shell around their emotions and mind to enable them to do their jobs. Without the shell, they are too emotionally involved and their logical thought processes are hindered. They have to be very pragmatic and realistic about what effect, if any, the abuse might have on the final outcome of a divorce. The shell is also necessary for the lawyers and judges to maintain their own mental health.

I have heard judges and lawyers alike make the statement, "My job isn't to counsel this couple on how to get along or on what went wrong in their marriage. My job is to get them legally divorced, split their assets and debts, get the children taken care of, and provide a number for support."

That statement is both right and wrong. At times, it appears as being very cold and inhumane. Sometimes it's nothing more than a cop-out to avoid dealing with a very distressing family situation. Sometimes it's a result of being jaded from hearing too many sad stories. Sometimes it's a matter of a lawyer or judge hearing about abuse, mentally comparing it to another story of greater magnitude, and then discounting it because it falls short of the other family's situation.

When a lawyer learns about abuse from a client, the lawyer has to make a decision about just how the abuse could be used in negotiations or trial.

• If the law permits, does the abuse rise to a level that could cause a judge to make a lop-sided financial decision, either in support or the division of property?

• Is the abuse recent enough to make any difference?

• Is there a long history of continued abuse or is it an isolated, one-time incident or is there a history of abuse in the past, but none recently?

• Has it had a long term effect on the victim and/or the children? Will a physician or mental health professional be able to testify as to the effect?

• What is the history of the actions taken by the victim after he or she has been abused?

• What has the abuser done, if anything, to try to correct or control his or her abusive behavior? What has the victim done, if anything, to try to get the abuser to stop or to get help stopping?

• How relevant is the client's account of the abuse to the potential outcome of the divorce? Is there enough money or assets to make it worthwhile to pursue relief? Is domestic violence and the custody of children involved and if so, what is the victim's position on the abuser's access to the children after the divorce?

• Is it a he-said/she-said thing? Are there witnesses, medical records, police records, documents to support the client's version of the abusive incidents?

• Will the abuser care whether or not there is an exposure of the family's abusive relationship? Just how much leverage does the threat of such exposure give the victim? If exposed, what is the risk of the abuser escalating his or her abusive behavior? Is the risk for further abuse worth it to the victim and/or the victim's family?

• Would it be better for the victim to pursue relief for the abusive acts now--in the divorce action? Or, would it be better for the victim to seek compensation and punitive damages in a marital tort action? If so, what strategy must be used to preserve the victim's right to pursue such an action?

Those are a lot of tough questions, and it's just a few of those that a divorce lawyer examines before making any final decisions on how to proceed with the presentation and handling of abuse in a divorce. The answers are all a judgment call to be made by the lawyer based upon his or her knowledge of the law, how each particular judge thinks and rules on similar family situations, and on instinct and experience.

To follow up on the first paragraph, here are a few examples of abuse that can occur in a relationship. Some of them are what I classify as very subtle, mind-control abusive behaviors.

• Threatening to destroy or harm something that is of value to the victim. Along with that goes the act of causing harm or destruction.

• Threatening to harm, or actually causing harm to, a person or pet loved by the victim.

• Unjust or excessive punishment of a person (particularly a child) or pet loved by the victim. Along with that comes the message, "I have to do this because of you." and/or "You must watch and listen to what I am doing here."

• Forcing children to observe or participate in abusive behavior directed at a spouse. The message here is, "See what your *mommy or daddy* has done. *She or He* has been bad and has to be punished. You have to hear this because I don't want you to do the same thing." Or, "You have to help me keep an eye on *mommy or daddy* and tell me if *she or he* does this again. If you don't and I find out about it, you will be in trouble just like *she or he* is."

• Unreasonably preventing the victim from having access to money, people, pets, property or anything else that the person values. For example, a wife telling her husband that he can't have anything to do with his children from a prior marriage because he shortchanges her and their children if he does. Another example would be a husband putting a locking mechanism on the car so his wife couldn't drive it anywhere without his permission.

• Persistent name-calling and labeling with the intention of making someone feel inadequate, weak, bad, or sick. An example would be of the husband who learned that his wife had spoken with her high school boyfriend. He accused her of things much worse than what she did -- talking to the guy on the telephone for 30 minutes. Her husband kept after her for years, telling her that she was a tramp, unfaithful, etc. -- you get the picture. After a while, she actually came to believe that she had defiled their marriage, been unfaithful, and was unworthy to have custody of their children or any financial benefit from the marriage.

• Obsessive control over what someone else does. Something that I've seen a bit of is a spouse who makes the other spouse account, in detail, for what he or she has done every minute of every day. If the account is lacking in any way, the controlling spouse can become angry, even more controlling, very aggressive, more manipulative, or very secretive and suspicious of meaningless, trivial things.

• Taking away a person's freedom to make decisions, go places, speak with people, have friends, etc.

The bottom line with some forms of abuse is that it's where persuasion crosses the line to coercion, force and destruction of self-esteem. With persuasion, someone can try to encourage you with words and actions to do what he or she wants. Persuasion doesn't make you feel afraid for your safety or for that of something or someone you love. Persuasion doesn't make you feel as if you are unworthy or bad. Persuasion doesn't make you believe that the only reply you can give is, "Yes, I'll do what you want...just don't....." Coercion and forcing others to bow to your will crosses the line into abusive behavior.

If a divorce lawyer or judge acts like he or she doesn't care about the abuse you may describe, that may not be the case. It could be that the abusive behavior you describe, when compared to the worst story they've heard that week and on a scale of 1-10 with 10 being the worst, doesn't come anywhere near a 10. Or, it could be that the law doesn't give the judge any way to give you any relief in the divorce. After all, a legal divorce action is nothing more than dividing the assets and debts, arranging for the support of children or a dependent spouse, and providing for where the children's primary residence will be and giving each parent the opportunity to have time with their children.

 

Divorce and Your Retirement

Retirement plan interests are often one of the most valuable assets, other than real estate, that most couples will have to allocate during a divorce. Chapter Four in Divorce Strategy explains the different types of retirement assets and describes how they can be handled during a divorce. An outline of the subsections in the chapter follows. Then, there is an excerpt from the chapter.

Subheadings for Chapter Four: Retirement

 

Nest Egg or Broken Egg?
Individual Retirement Accounts
Annuities
Keogh and SEP Plans
Deferred Compensation Plans
Employer Sponsored Retirement Plans
Types of Plans
Identifying Your Retirement Plan
Qualified Domestic Relations Orders
Pension Benefit Guaranty Corporation
Specialized Retirement Plans
Social Security
Accessing Retirement Funds Now
Preparing for Your Retirement

Excerpt from Chapter Four: Retirement

Nest Egg or Broken Egg?
There are many different types of retirement plans from small, self-directed individual accounts to very large group plans managed by professionals. A self-directed account in an individual retirement account (IRA) or an annuity can be funded by the owner who contributes money directly to the investment. An IRA is often used as a rollover account for a distribution from a company 401(k) or other retirement plan. The larger group plans can be public, private, specialized or government sponsored retirement plans. These plans can be funded by the employee, the employer or both. How these factors, and others, affect the division of retirement assets in a divorce is explained in the following sections.

In some employer sponsored plans, a person can contribute money directly into his or her account, an employer can then match or pay more than the employee contribution. In other plans, only the employer can contribute money. Each plan is unique and has guidelines and restrictions about dividing the account after a divorce.

For purposes of the divorce court order, the Participant is the spouse who earned the benefit and the Alternate Payee is the ex-spouse of the Participant. The Surviving Spouse may be an ex-spouse or the present spouse of a Participant. If your divorce involves the division of a retirement plan or account, be sure to check on the requirements of the division with each Plan Administrator or account custodian. Then plan your division to comply with the requirements for each type of account.

Individual Retirement Accounts
Individual Retirement Accounts (IRA's), are divisible by a court order. Before the account division, the custodian of the account will require a certified copy of the court order. Also, the receiving spouse will have to complete the proper elections or payout forms. The funds in the IRA are paid directly to the receiving spouse or rolled over into an IRA in the name of the receiving spouse. If the receiving spouse elects to receive money instead of rolling it into an IRA, taxes and penalties may be owed.

Annuities
An annuity is a savings plan sponsored by an insurance company. You can purchase it through a life insurance broker, financial planner, securities broker and some mutual funds. The earnings in the annuity are tax-deferred. The contribution is also tax-deferred if the annuity is part of an individual retirement account.

The key elements of an annuity contract in a divorce are the owner, the annuitant, the beneficiary and how benefits are paid. Usually, one person is the owner of the annuity; however, in some types both spouses can be owners. The annuity pays earnings based upon the projected life span of only one person, the annuitant. The owner has the right to designate the beneficiary of the annuity in the event of the annuitant's death. Finally, the payments from an annuity can be in a lump sum paid at a certain preset time or periodically over a number of years. All of these terms play a part in how you would decide to divide an annuity.

The company that issued the annuity contract determines what is divided and how that division occurs. Typically, the issuer of the annuity requires that specific language be used in the settlement agreement or court order. In some cases, the issuer will even require a separate court order similar to a Qualified Domestic Relations Order. This order must follow criteria established by the issuer and the issuer must approve and accept the order before it divides the annuity.

Types of Plans
In general, there are two types of pension plans: defined contribution and defined benefit. A defined contribution plan is one in which the value of the plan is determined in part by the amount of contributions made into the plan. The employee, employer or both can make contributions to the retirement account.

The valuation of a defined contribution plan is relatively simple. It can be determined by multiplying the account balance by the percentage of vesting. The amount of the contributions is usually preset as a percentage of gross income of the individual or as a share of profit in the case of a profit sharing plan. The employer may also, at its discretion, make additional contributions if the plan permits. The employer is responsible for depositing the contributions into the retirement plan at certain times during the year. These times are usually described in the plan's summary documents and may be monthly, quarterly, semiannually or annually.

A defined benefit plan is one in which the Participant is eligible to receive a specific, periodic payment beginning at retirement. In some plans, the Participant can elect to receive this payment in one of several ways. The chosen method can affect the amount or timing of the payments. Be sure to check the plan's rules regarding distributions or benefit payments. In a defined benefit plan, the employer makes contributions to a retirement account on behalf of the employee and the employee becomes vested in his or her account after a certain number of years of service.

You can value this plan in one of two ways. First, an actuary or accountant can mathematically compute the present-day value of the future income stream from the plan. Second, rather than using a present-day cash value, you can divide the future income stream by a Domestic Relations Order. The present-day cash value of the retirement benefit may be a substantial amount, especially for an employee who has participated in the plan for a long period of time. A divorcing spouse may benefit from using this valuation method as a tactic to encourage the other spouse to trade an interest in the pension for a different asset.

Some states and some judges will not value a defined benefit plan by the present-day cash value method. In these instances, the court may choose to divide the pension account by a Domestic Relations Order rather than award the pension to the participating spouse.

To read more sample chapter excerpts, visit the sections on Small Business,  Your Expenses,  Divorce Lawyers, or Real Estate .

Second hand Smoke and Child Custody

Secondhand smoke, also called environmental tobacco smoke (ETS), can have an impact on child custody decisions. The possible consequences of parental smoking in a custody case can range from termination of parental rights or a change of custody and restrictions on visitation to the smoking parent receiving custody with smoking restrictions and a requirement for follow up reports to the court.

First, here are a few facts about secondhand smoke that courts have already taken judicial notice of.

• Secondhand smoke consists of mainstream smoke exhaled from a smoker's lungs and sidestream smoke that comes directly from the burning tobacco.

• Secondhand smoke comes from all tobacco products, including pipe tobacco and cigars.

• Secondhand smoke is a Class A carcinogen. That puts it in a class with 15 other substances, including asbestos, radon and benzene, that are known to cause cancer in human beings.

• Secondhand smoke contains 4,000 substances with more than 40 of them known to cause cancer and many of them known to be strong irritants to human tissues and organs. Examples of these substances are: carbon monoxide (CO), ammonia, nicotine, hydrogen cyanide, benzo[a]pyrene, dimethylnitrosamine, tar, formaldehyde, and beta-naphthylamine.

• The chemicals in secondhand smoke damage cell DNA.

Here are a few facts about how involuntary smoking, or passive smoking, effects children:

• Children, especially infants and toddlers, exposed to secondhand smoke have more lower respiratory infections, such as bronchitis and pneumonia, and are more likely to be hospitalized during the first two years of their lives for a serious lung problem.

• There is a link between secondhand smoke and infants who died from Sudden Infant Death Syndrome (SIDS).

• Children exposed to secondhand smoke are more likely to have reduced lung functioning and symptoms like coughing, sneezing, excess phlegm, wheezing, stuffy nose, headaches, sore throat, eye irritation, hoarseness, dizziness, nausea, loss of appetite, lack of energy, or fussiness.

• Children exposed to secondhand smoke are more prone to middle ear infections. Passive smoking can lead to a buildup of fluid in the middle ear as a result of irritation and swelling of the Eustachian tubes connecting the middle ear and nasal passages.

• The greater the amount of parental smoking the more frequently children of those parents have respiratory infections.

• In families where both parents smoke, the children have significantly more respiratory infections.

• Children exposed to passive smoking have significantly reduced pulmonary functioning and their lung growth is hindered. Since they subsequently fail to reach their optimum lung growth, they are more likely to have pulmonary health problems as adults.

• Maternal smoking relates more closely to childhood respiratory infection than paternal smoking.

• Children exposed to secondhand smoke are more likely to develop asthma. For those children who already have asthma, exposure to secondhand smoke increases the frequency and strength of a child's asthma attacks.

• Children exposed to parental smoking are more likely to suffer accidental cigarette burns and hazards from fires set by children playing with matches and butane lighters or parents leaving burning cigarettes unattended.

• Adults, who as children were exposed to significant levels of secondhand smoke, are more likely to have lung cancer, heart disease and cataracts.

• Children exposed to parental smoking are more prone to becoming smokers.

• Children exposed to parental smoking have emotional and psychological concerns about the smoking parent's health.

Facts about secondhand smoke and smoking for pregnant women:

• Women who smoke during pregnancy or who are repeatedly exposed to secondhand smoke are more likely to have a miscarriage.

• Babies, whose mothers smoke or who are repeatedly exposed to secondhand smoke, are more likely to be born stillborn, premature and not fully developed, or with a lower birth weight.

• Infants whose mothers smoked during the pregnancy or were repeatedly exposed to secondhand smoke are more prone to Sudden Infant Death Syndrome (SIDS).

• Children, whose mothers smoked during the pregnancy or were repeatedly exposed to secondhand smoke are more likely to suffer from some childhood cancers.

In a custody fight, courts across the country can, and have, done the following:

• Determined that the risks to the child's health in exposure to secondhand smoke from parental smoking are one factor among several others that should be used when determining what custody arrangement is in the best interests of a child.

• Taken judicial notice of the effects of secondhand smoke on children.

• Ordered the smoking parent to restrict his or her smoking when the children are present or before exercising a period of custody.

• Transferred custody from the parent who smokes to the nonsmoker parent.

• Taken custody from both parents and awarded it to a relative or other third party.

• Retained jurisdiction for a period of months after entering a custody order to check on parental compliance with orders.

• Discounted the claims or efforts of a parent who is trying to quit smoking. The reasoning is that the parent may be more motivated by a desire to win the custody fight than a genuine concern for the health and welfare of the child.

• The smoking habits of grandparents, significant others and any other person who has frequent contact with the child may be a factor in a child custody decision.

One note of caution about parents who smoke and willfully and knowingly expose their children to secondhand smoke:

• The language and definitions used in the child abuse and neglect laws of some states may be interpreted so that parental smoking around children is considered a form of child abuse. It is possible that professionals, like psychologists, pediatricians or certain care-givers, may be required to report a child suffering from symptoms caused by exposure to secondhand smoke to the appropriate child protection agencies.

If you smoke, here are some steps you can take to reduce the effects of your secondhand smoke on your children. They could also decrease the detrimental effect your smoking could have on the outcome in a divorce, modification, or termination of your parental rights action:

• Always smoke outside and wait a while after you smoke a cigarette, cigar or pipe before entering your home.

• If you must smoke in your home, restrict it to one room away from your children. Always have a window open for cross ventilation and use a good air cleaner with a clean air filter.

• Never smoke in a car when your children are present. Smoking with a window open or cracked is not sufficient.

• Take affirmative steps to avoid places where your children will be exposed to secondhand smoke.

• Quit smoking. If you need help to quit, visit QuitSmoking.com.

For more information and the sources for the facts in this article, see reports issued by the Centers for Disease Control, The Environmental Protection Agency, The American Academy of Pediatricians, and the American Lung Association.

Legal resources can be obtained from the Action on Smoking and Health (ASH), the St. Louis University Public Law Review, and the Marquette Law Review among several others.

 

A Message From Jill

Hello everyone,

I'm 14 and my parents have been separated since I was 2, divorced when I was 12.

I just wanted to offer you all one small piece of advice. After a divorce make sure you stay in touch with your kids. It is the hardest thing in the world for a child to not know where their mother or father is and not know for sure that they love them.

My father made the mistake of losing touch without ever explaining why to me, my brother, and my sister. My brother and sister now hate him and will have nothing to do with him. I have managed to get in touch with him and have seen him twice in the past three years, but he still will not call my house. If I want to talk to him I need to call him.

Never let this happen between you and your kids. It causes so much unnecessary pain for both sides involved.

Also, if you're planning on getting a divorce don't just leave in the middle of th night thinking no one is watching. I saw my father preparing to leave and, even though I was young at the time, I can remember it like it was yesterday. My father doesn't know that I saw him. This memory has haunted me for so long. If my dad had just told me he was leaving it would have made it easier on me and my siblings.

Please just think about what I have said.

Jill

 

Twenty Five Tips for Parents Whose Children Are Getting A Divorce

by Laura Johnson

Here are some do's, don'ts, and tips to help you handle things when your son or your daughter says, "Mom and Dad, I'm getting a divorce."

1. Don't become personally involved in your child's divorce.

2. Don't ask your friend, the lawyer, to represent your son or daughter.

3. Don't go to meetings between your son or your daughter and his or her lawyer.

4. Don't let your son's or daughter's divorce affect your relationship       with your other children.

5. Don't interfere with your son-in-law's or daughter-in-law's visitation rights with your grandchildren.

6. Don't say bad or derogatory things about your child's spouse in front of your grandchildren.

7. Control your protective instincts and avoid becoming caught up in the nastiness of the "he said—she said" side of divorce. Recognize that divorce and family break ups are highly charged emotional events and can easily erupt into violent situations. Take precautions to protect your family's safety.

8. Do listen to your son or daughter if he or she confides in you about the break up of the marriage; be supportive, but don't say things that will fuel feelings of anger, distrust, anxiety, or hopelessness.

9. Don't help your child hide money or assets. If you're caught, in addition to becoming a party to your child's divorce or a legal action after the divorce, you could jeopardize your own assets.

10. Do pay extra attention to your grandchildren. Their mom and dad may become so caught up in their own feelings about the divorce, that they will unintentionally fail to spend enough time listening to and doing things with their children.

11. Realize that your grandchildren's schedule of life will be drastically changed. They will be shuffled between dad's home and mom's home and each parent may jealously guard his or her time with the children. You may have to make special plans, weeks in advance for family get-togethers so that you have time with your grandchildren.

12. If either of your grandchildren's parents will not let you have time with your grandchildren, learn about the grandparent visitation laws in your state, and take legal steps enforce those rights if necessary.

13. Your grandchildren need you during and after their parent's divorce. Call them on the phone, write letters, send cards, and spend time with them.

14. If your son-in-law or your daughter-in-law will have custody of your grandchildren, talk to him or her about your access to your grandchildren. Understand that it will be probably be uncomfortable for everyone and that you may be met with resistance, resentment and suspicion. Plan, in advance, for ways you can reduce those feelings.

15. Become involved in making "new" family traditions for your child and grandchildren to replace those lost in the ending of your child's marriage.

16. Attend your grandchildren's special events, such as sports games, recitals, and school affairs where families are invited.

17. If there are allegations that your son or your daughter has abused or neglected your grandchildren, be prepared for the possibility that you may be ordered by the court to supervise his or her time spent with your grandchildren. Take this responsibility very seriously and assume that you will have to tell the judge, under oath, about what occurred during the times you supervised your child's access to your grandchildren. During the time that you are charged with this responsibility, never leave your child alone with your grandchildren and be prepared for the possibility that you will become a target of your child's spouse or ex-spouse.

18. Do help your child become educated about the divorce process, financial planning, child custody, and recovery from divorce.

19. If you own property, especially real estate, with your son and daughter be prepared to be named as a party to the divorce proceedings. This is so the court can "divide" the property in which you have an ownership interest.

20. If your son or your daughter moves into your home during the pendency of his or her divorce, set rules about household chores, payment of household bills, transportation, and payment for room and board. Have your child sign a lease evidencing your agreement and require regular payments.

21. If your grandchildren, as well as your child, live in your home during the pendency of your child's divorce, discuss with your child how your grandchildren's day care, transportation, discipline and social life will be handled.

22. If your child doesn't have any money, receive sufficient financial support, or have enough income to pay for everything that he or she is supposed to, plan for the possibility that you may become a secondary source of financial support for your child and grandchildren.

23. If you loan your child money to pay for your child's or your grandchildren's living expenses, always do it with a promissory note. If possible, secure your loan with any property that your child may receive in the divorce or with your child's future earnings. Make sure that you charge a reasonable rate of interest and expect monthly payments.

24. Plan for the possibility that your child may ask you for large sums of money to pay divorce lawyers and other costs of litigation. If you do provide money, always do it in the form of a loan, charge interest, and demand repayment, but expect that it will take a long time to get your money back, if you ever do. If possible, secure your loan with any property or fee award that your child may receive in the divorce.

25. Tell your child and your grandchildren that you love them. Give them lots of smiles, hugs and kisses. They need them more than ever during and after a divorce.

 

Divorce and Your Expenses

by Laura Johnson

This chapter from Divorce Strategy was excerpted in all of the Fall 1998 U.S. editions of Divorce Magazine. The article is titled Charting Your Expenses in the Money Matters section.

How Much Does It All Cost?

Your cost to maintain an established lifestyle consists of all the expenses you pay from all your income sources, including loans. In a divorce you will hear the phrases "maintain a lifestyle to which your family is accustomed" and "reasonable needs". There is an inherent conflict between the concepts of lifestyle and reasonable needs. The cost to meet the reasonable needs of your family may be much different than the cost of your lifestyle.

Webster's Dictionary defines lifestyle as the "consistent, integrated way of life of an individual as typified by his manner, attitudes, possessions, etc.". Reasonable needs are those things necessary to sustain a family with the basic requirements. The qualifier "reasonable" adds the limitations of not excessive, extreme or immoderate. Your family's lifestyle and reasonable needs are the twocomponents of expenses that play a part in a divorce.

The difference in the definitions between "reasonable needs" and "lifestyle" becomes painfully obvious when a divorce court sets an amount of money for child support or spousal support. Quite often, the support amounts do not satisfy either spouse's expenses to maintain previous lifestyles or the family's current reasonable needs. This may lead to each ex-spouse being angry or bitter. These feelings are a result of each spouse believing that he or she is either paying too much or not receiving enough money for support. In reality, both spouses have to make adjustments in how they each pay for their needs and maintain their lifestyle.

Historical and Current Expenses

Your first step to determine the cost for your family's lifestyle is to gather documents showing how your family has spent all the family money over a period of time. Several years worth of records are optimum, but records beginning one year prior to any separation may suffice. Some of the records you need are: bank account registers, canceled checks, paid bills, credit card statements, loan papers and cash receipts.

Software for financial record keeping is very helpful if you have a computer. A manual system takes longer to put together, but can be just as effective. For the manual system you need a 14 columnar pad, an adding machine or calculator, a good eraser and pencils. Use the worksheets at the end of this chapter as guidelines for setting up your own worksheets on separate sheets of paper.

To keep better track of expenses, change some of your spending habits. Start paying for as many expenses as possible with a credit card or check. Keep a daily log of any cash purchases. If you use a debit card to buy groceries and get cash back, note the amount of cash you received. Also, be sure you do not include the cash you received as a part of your food expense. Enter your current daily expenses under the proper categories into your daily or weekly worksheets. At the end of a month, add up all of your weekly expenses by category to get a monthly total for each category. Write that number in the proper space for each category expense for the month listed in your annual worksheet.

Continue keeping track of your daily and monthly expenses, transferring your monthly totals into a yearly worksheet listing your categories of expenses paid in that month. Total each month's expenses and total each category for all the months you have entered data. Add all the month's totals and divide by the number of months to get an average monthly total for each expense.

Organizing Your Records

Another example is credit card charges made to a child's clothing store. This is a clothing expense and the children benefit from the purchase. List the expense under the clothing category for the children. The next step is to review each canceled check, paid bill or receipt and credit card statement to categorize all the transactions. At the same time you are categorizing the expense, record it into your system. Use the model worksheets on pages 165, 166, 168 and 169 to set up your recording system. Examples of some category listings are on pages 167 and 170.

Enter the expenses that you pay annually in the month you make the payment. Examples of these expenses are real estate taxes or insurance premiums. If you do not pay all your credit card bills in full every month, make a notation of the full amount of the bill and the amount you paid. Be sure to make an adjustment deducting the amount you carried over from the previous month when you make an entry in the following month. You want to list only the unpaid balance for the new charges each month to avoid a double entry for any balance carried over from a prior month or billing cycle. In some instances, the payment you make on the balance owed may be a monthly expense. Do not forget categories for interest, penalties and late fees.

Direct and Indirect Expenses

Once you have your family's expenses listed and categorized, allocate them further into direct and indirect expenses. Direct expenses are the expenses incurred specifically for a particular family member. Indirect expenses are the costs for housing and other types of expenses necessary to maintain your family's lifestyle. Examples of direct expenses are: tuition for a child to attend a private school, college tuition and room and board, clothing, medical expenses or music lessons. Some indirect expenses are: rent, mortgage payment, utility bills, automobile loan payment or insurance. In some cases, a payment of automobile insurance can be a direct expense if it is paid for a teenager to drive a car. Once you have compiled the worksheets for your family's expenses, compute the average monthly total for the children's indirect expenses and direct expenses.

Marital Torts, The New Way to Handle Fault in a Divorce?

by Laura Johnson

According to a legal dictionary, a tort is a private or civil wrong or injury that results "from a breach of a legal duty that exists by society's expectations regarding interpersonal conduct, rather than by a contract or other private relationship."

Every lawsuit has something called elements that must be present to sustain a cause of action. In a tort action, the following elements must be present:

• there must be a legal duty owed by a defendant to a plaintiff, and

• breach of that duty, and

• a causal relation between the defendant's conduct and the resulting damage to the plaintiff.

A marital tort comes from incidents or behaviors that occurred between spouses, and sometimes third parties, during the marriage, even during the pendency of a divorce suit and possibly afterward in certain circumstances.

Some examples of a suit that could be brought as a marital tort action are:

• assault and battery

• rape

• spoliation of evidence, negligent and/or intentional

• infliction of emotional distress, negligent and/or intentional

• transmission of a venereal disease

• interference with custody

• harassment

• fraud

• invasion of privacy, wiretap

• false imprisonment

• conversion

Ex-spouses aren't the only people at risk of being a party to a marital tort action. For example, if the underlying tort is fraud or spoliation of evidence for hiding assets, lying about the value of assets, or transferring assets to deprive a spouse from having the asset included in the marital or community estate during a dissolution of marriage, anyone who assisted in the wrongful activity is at risk. It could be an accountant, a bookkeeper, a lawyer, a stockbroker, a family member or a friend.

In addition to tort claims, some people have been successful bringing cases under the federal Racketeer Influenced and Corrupt Organizations Act (RICO), 19 U.S.C. Sections 1961-68. This permits a plaintiff to sue for treble damages and attorneys fees. Some examples of behavior that might be addressed in a RICO suit are a spouse using marital assets improperly or concealing the true amount of income during a divorce.

An option that may exist for some plaintiffs involves the federal Violence Against Women Act of 2000 (VAWA) where the plaintiff can ask for compensatory and punitive damages and attorneys fees. The elements to a VAWA action are: The defendant committed a crime of violence that rose to the level of a felony and the conduct was gender-motivated. The defendant doesn't have to be charged with a crime and the defendant's behavior doesn't have to be classified as a felony in the state where the act occurred.

An interesting area of law is developing in the area of wiretapping and the illegal interception of communications. There are federal and state laws about wiretapping and what may be legal in one state, isn't in another, or isn't in federal court. Some examples of communication interception that may be the basis for a suit are: telephone wiretaps, eavesdropping on cellular communications, eavesdropping on cordless phone conversations, downloading your spouse's e-mail files, getting records of your spouse's conversations on Internet chat rooms, or intercepting beeper messages.

Spoliation of evidence might be brought when a spouse has destroyed documents that would support a claim about real estate ownership or other interests in real estate. Not all states recognize this cause of action.

Many divorce lawyers do not discuss marital tort actions with their clients. Some lawyers who specialize in this field of law believe that when a divorce lawyer fails to explore the possibility of a martial tort action with a client, that the lawyer has committed malpractice. If you believe that your spouse may be liable to you for his or her past and present actions, bring it to the attention of your lawyer by asking, "Can we talk about whether I can file a marital tort action against my spouse?"

Don't wait until the divorce is over to ask that question. In some states a marital tort must be joined with the divorce action. If you don't bring it at the same time as the divorce, you lose forever the right to pursue the marital tort. Other states permit the tort action to be joined with the divorce but don't require it. Other states don't allow the tort action and divorce action to be joined at all. Still other states don't permit marital tort actions. In others, the courts don't really know what to do with marital torts, especially when the divorce is always a judge-tried case and the marital tort action can be tried by a jury. Be sure to ask your lawyer to explain the law of your state regarding marital torts.

There are some benefits from joining a marital tort with the divorce. The total expenses for legal fees and costs of litigation are reduced. The evidence in the divorce case can be used in the tort case. There are also some disadvantages to joining a divorce and a tort action. If the divorce action is tried by a judge instead of a jury, and the divorce judge also makes the decision in the tort action, the potential award from the tort may be much less than what a jury would award. In addition, a judge may not award the victim as much as he or she could get in a divorce action because of the award in the tort action.

The problem with many marital tort actions is that there isn't anyone to sue who has enough money to make pursuit of the action worthwhile--it's the "deep pocket" problem. Many potential suits aren't filed simply because the defendant doesn't have sufficient assets or income to permit the plaintiff to collect on any award, including an award for attorneys fees.

Sometimes the deep pocket problem can be addressed by bringing third party defendants into the cause of action. For example, a homeowners insurance company may pay on a claim for a negligence suit, police for failure to enforce a restraining order, an accountant for failing to disclose certain financial records, or a family member for helping to hide a child so a parent is prevented from having access to the child.

Many divorces are completed by a settlement or separation agreement. It is standard for many lawyers to have a boilerplate provision called the waiver. The purpose of the provision is that each spouse agrees that the settlement reached in the divorce acts as a complete settlement of any legal claims or issues that may arise from their marriage. This waiver provision has value if a marital tort is a potential suit or is already filed.

And, if you sign the settlement agreement with the waiver, you could be signing away your right to file a tort action from events that occurred during your marriage. You may still be able to file a tort action for events that occurred after the divorce or if the waiver is specific in nature instead of a general waiver. Check with your lawyer during settlement negotiations.

Finally, if you believe that your spouse may have a marital tort cause of action against you, discuss it with your lawyer. It is possible that you may make certain admissions or statements during deposition testimony, answers to interrogatories, or in a trial. Those admissions could be used by your spouse or ex-spouse to support a marital tort action. The same goes for any findings made by a judge regarding your conduct during the marriage.

Always discuss marital torts with your divorce lawyer. If you think that you have been a victim of your spouse's misbehavior, describe the behavior to your lawyer and then ask, "Is that behavior the basis for a potential marital tort action?" Don't be shy or embarrassed to tell what happened. Your lawyer needs to know so he or she can appropriately advise you of your legal rights and opportunities.

If you think that you face the risk of being the defendant in a tort suit, tell your lawyer about the behavior that you believe may put you at risk and ask, "Does that behavior put me at risk for a marital tort action, and if so, what can we do in the divorce action to protect me from it in the future?" One caveat to admitting bad behavior, especially secreting of assets or lying about income, you may find yourself looking for another lawyer.

 

 

Marital Misconduct: Does It Count?

by Laura Johnson

Even though your state may be a no-fault divorce state, it doesn't mean that you or your spouse won't have to answer in some way for any misbehavior during the marriage. It's what divorce lawyers and courts refer to as marital misconduct and, in certain states, can effect the outcome of the division of property, an award of spousal support, or an award of attorney's fees for the victim-spouse.

The legal definition of marital misconduct is any conduct that undermines the marital relationship. It becomes a factor in a divorce when the offender-spouse's behavior forces the victim-spouse to assume extra burdens in the marriage. It isn't meant to punish the offender-spouse or award him or her an inadequate amount of property or income, but to fairly compensate the victim-spouse.

The rationale behind this theory is that the victim-spouse is compelled to contribute more to the marriage because of the offender-spouse's misconduct, therefore he or she is entitled to have the offender-spouse's behavior taken into consideration when property or income are divided. Marital misconduct can be disregarded if both spouses are guilty of marital misconduct. In some states, marital misconduct is specifically disregarded as a matter of law.

In those states where misconduct is a factor, there are several broad categories of behavior that might be classified as marital misconduct. They are:

Once the offender-spouse's behavior has reached the level of marital misconduct, it is the court's responsibility to determine just how much weight to give to it in each specific situation. Some of the considerations the court looks at when deciding this issue are:

Certain types of marital misconduct may have more of an impact upon a court's decision-making than others. For example, cruelty or domestic violence might not be a relevant or appropriate consideration for making an equitable division of property because this type of misbehavior typically isn't relevant to the acquisition of marital property. The same cannot be said for economic fault, adultery or an addiction, all of which can directly influence a couple's property.

There are several types of economic fault. They are:

Some divorcing spouses believe that once they are separated and a divorce filed that marital misconduct, especially adultery or economic fault, has no effect on the outcome in a divorce. That isn't actually the case. Each divorce is very fact specific and the same logic about the impact of marital misconduct on the division of property applies whether it occurred prior to the separation or during the pendency of a divorce. This is particularly true for economic misconduct.

There are some states that have statutes that specifically permit a court to award a disproportionate or lesser share of property to an offender-spouse, particularly if the misconduct can be classified as economic. The facts of each particular divorce play a heavy role in how the court applies the law.

In cases that involve the dissipation, hiding or destruction of assets, the excessive or abnormal spending of income, or the fraudulent conveyance of assets the court can't increase the size of the marital or community estate that actually exists. However, it can order a disparate division of the existing and known property to reimburse the victim-spouse for his or her loss in the couple's estate.

In addition to having a possible effect on the division of property, marital misconduct may also have an effect on the amount of spousal support an ex-spouse may receive provided he or she qualifies for such support. This can work both ways. If the spouse who may be entitled to receive support is guilty of the misconduct, his or her receipt of support may be in jeopardy depending upon the nature and level of the misconduct. On the other hand, a paying spouse might have to pay more, especially if his or her behavior caused the victim-spouse to give up or reduce the ability to earn income.

The following states take marital fault into consideration when determining an award of spousal support: Alabama, Arizona, Connecticut, District of Columbia, Florida, Georgia, Idaho, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming. (Source: American Bar Association, Family Law Quarterly, Winter 1998, Tables Summarizing the Law in Fifty States)

The following states take marital misconduct, especially economic fault, into consideration when dividing marital or community property or in reimbursing the marital or community estate: Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Indiana, Kansas, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia and Wisconsin. (Source: American Bar Association, Family Law Quarterly, Winter 1998, Tables Summarizing the Law in Fifty States).

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