I have published several articles recently on the subject of cheating, affairs, and marital infidelity. I recently found the following list of "tell-tale signs" that your significant other is cheating on you. The list is written with the idea that the male is the cheater, but of course the logic applies in both directions:
He won't let you see his social media sites. Why won't he accept your "friend request" or let you see his/her Facebook, MySpace, LinkedIn, Twitter, etc. page?
He only wants to go to new or different places with you, instead of going places that his friends and colleagues are. Is he afraid to bump into someone that knows what's going on?
He doesn't seem to have any friend of the opposite sex. The article says that if no woman is willing to vouch for your man, then it may be a red flag.
He never answers the phone when you call. You might receive calls, texts, etc. from him, but if he never answers your calls, it could be due to his being with someone else.
He only wants to see you at odd hours and/or frequently cancels dates at the last minute.
You never go back to his place – ever.
He has things in his home that seem out of place. For instance, does he have things that seem to be more feminine? Have you seen pictures of another woman or maybe feminine hygiene products?
If you are interested in hearing my interview from the South Carolina Business Review about the effect the economic downturn has on families, you can CLICK HERE.
This interview was broacast on eight NPR radio stations across South Carolina on June 18, 2009. Thanks again to Mike Switzer for having me as a guest on his show.
I was in a settlement conference recently in which the husband's attorney tried to argue that his client's adultery "was really o.k " because my client had suffered from depression and therefore wasn't a great wife. Of course, I pointed out that was baloney and reminded him of the actual defenses to adultery. However, his argument begged the question of whether cheating is ever justified or deserved.
The article questions whether the conduct rendered by "bad spouses" justify the "innocent spouse" seeking romantic companionship elsewhere. It concludes "cheating isn't right, but neither is emotional abuse and neglect." What do you think -- is cheating ever justified? Submit your comments below.
Lawyers USA featured an article late last week about the types of information that can be found in social networking sites, such as Twitter, Facebook, LinkedIn. The article correctly states that these sites have opened up a potential treasure trove of legal evidence, especially in divorce cases where a person’s whereabouts, “friends” and employment status are often relevant.
Lee Rosen, Melissa Brown, and I were all quoted in this article about the ways that family law attorneys are effectively using these sources of information on their client's behalf – and also the ways that other attorneys are not. If you are facing a divorce or child custody case, or if you are an attorney who handles these types of cases, you should read this article.
My quotes are listed below:
“In divorce or child custody cases, what we look for is confessions - things they’ve done, places they’ve been [and] people they’ve had their child around,” said J. Benjamin Stevens of Stevens - MacPhail in Spartanburg, S.C.
For example, a parent who is restrained from taking a child out-of-state might post photos of visiting Disney World or other vacation destinations with the child.
Or, in a custody case that Stevens handled, a father denied drug use but the background of his MySpace page featured marijuana leaves.
A person’s LinkedIn profile can contain evidence of earning capacity or job prospects that can be useful in disputes over support payments.
After he gained national headlines by being "missing" for five days, South Carolina Governor Mark Sanford reappeared today and admitted at a press conference that he's been having an affair with an Argentinan woman for about a year. As part of his statement given at a press conference, Gov. Sanford admitted "I have been unfaithful to my wife," and he said that his wife has been aware of the affair for the last five months.
Gov. Sanford announced that he is resigning as Chair of the the Republican Governors Association, but it is unclear at this time whether he intends to resign as the Governor of South Carolina. When asked that question at the news conference, he walked away from the podium without answering. Also, he may face an investigation, as it appears that he willfully misled his staff, Lieutenant Governor Andre Bauer, and the citizens of South Carolina about his whereabouts.
My thoughts are with Mrs. Sanford and the Sanford children as they deal with these difficult issues in a very public forum. You can read more about this developing story by clicking the "Continue Reading" link below.
The impact of social media on the area of family law has been a hot topic recently. I have recently posted several articles about this subject, and this week's Time magazine features an article discussing the impact of Facebook on divorce cases in America.
Social media sites such as MySpace, Facebook, Twitter, LinkedIn, and many others make it very easy to connect (or reconnect) with other people. Finding someone can often be done in a few clicks. However, this ease of use can cause problems for those looking to disconnect from a relationship. For instance, this article discusses the "semipublic laundry-airing that can turn aggrieved spouses into enraged ones and friends into embarrassed spectators."
Of course, savvy divorce attorneys know that social media sites can be great sources of helpful and often "game-changing" information in divorce or child custody cases. Consider the following examples given in the article:
Did your husband's new girlfriend Twitter about getting a piece of jewelry? The court might regard that as marital assets being disbursed to a third party.
Did your wife tell the court she's incapable of getting a job? Then your lawyer should ask why she's pursuing job interviews through LinkedIn.
What about the mother who assure the Court that she hadn't been drinking, only to have dated photos of herself drinking (and smoking) on her MySpace page?
What about the mother who listed herself on a dating site as single with no kids? How much doubt does this cast on her truthfulness?
What other problems / benefits can arise from social media sites and how do they impact family law cases? Click HERE to read the Time article and also feel free to submit your Comments below to let me know your thoughts.
One of the most important tools for making cooperative parenting work and, for that matter, negotiating any issues in a divorce or raising any matters of concern is to discuss them in a reasonable and non-accusatory manner. In her excellent book, "Mom's House, Dad's House," Dr. Isolina Ricci, suggests applying what she refers to as basic "parent-business principles," when relating to one another. One of these principles is keeping your feelings in check. In a business relationship, feelings may run high, but good business people understand that feelings should not get in the way of negotiating solutions to problems. If many spouses talked to their bosses the way they talk to their partners, they'd be fired on the spot.
In a business relationship one of the keys to success is to be solution focused instead of focusing on blame or past mistakes. For example, if a couple are negotiating how they should share taking children to after school activities, it is more productive if the parties focus on working out a plan that realistically accommodates their schedules and provides certainty for the children than trading accusations about how one parent was always too busy to get involved before the divorce and why are they now suddenly showing an interest.
However, applying "parent-business principles" is often easier said than done when the relationship has broken down in a hail of accusations and re-criminations and your ex-partner knows exactly what buttons to push. Even in the best relationships reasonable demands (e.g. How many times do I have to ask you to...) can be met with tit-for-tat accusations in which there is no winner. In a divorce situation, especially where children are involved, acrimonious conflict serves no-ones best interests. While you cannot change the past, you can change the way you communicate.
One of the reasons dialogue gets out of control lies in the way requests are made. They often involve you statements which feel like a first line of attack and invite defensiveness or a counteroffensive. They are guaranteed to start an argument.
"Polite Requests" involving I statements are a way of making a non-threatening requests for change. They begin with an "I" statement where you identify and take responsibility for your feelings and thoughts. They are an integral part of making a "Polite Request."
YOU STATEMENT = "You are always late".
I STATEMENT = "I get very frustrated when I have to wait for you."
"I feel/felt ______________________ (insert feeling or word) when __________________________ (this happens) and what I'd like is _________________ (insert your request)
This is what an "I" statement sounds like:
"I feel angry when you let our son watch R-rated moves, and what I'd like is for you to leave him with me when you want to go to an adult movie."
"I feel worried when Tasha comes home smelling of smoke and what I'd like is for you to consider smoking outside."
If the going gets tough and meaningful and courteous communication becomes difficult or breaks down, Dr. Ricci makes the following suggestions to minimize conflict:
Make communications direct and formal and if necessary use email or leave voice messages.
Keep the agenda to what is best for the children.
Avoid the temptation to push buttons.
Try to acknowledge the other parents positive contributions.
Do your job as a parent, let him or her do their job as a parent.
Be reliable and live up to your side of the bargain. Do what you are going to say.
Be flexible. If he or she wants something, maybe you can trade.
For parents with children, negotiating a complicated divorce can leave even less time for the kids, regardless of the custody outcome. No matter what agreement is reached in regards to their care, your added stress will undoubtedly take some of the focus away from their needs. Learn to recognize the signs that your child is being affected in a way that needs your attention.
Most of us take it for granted now days that a divorce will affect the kids, and for good reason, because it most certainly will. While this fact may never outweigh the reasons for the separation, it certainly doesn’t mean that you can afford to ignore their needs. In many ways tending to these needs may be straight forward, like balancing travel and making sure everyone gets to their activities on time. But in other emotional avenues there may not be a clear road map.
Remember they’re your children.
No one knows your children better than you do, and as time passes and changes being to happen, you will almost certainly begin to notice changes in their behavior and outlook as well. Adjusting to the difficult changes that a divorce brings is something that everyone involved will have to do. Just remember that you don’t want to overlook their needs when you are tending to your own.
As I previously posted, I was interviewed recently on WYFF about the effect that the economy is having on divorces in South Carolina. You can read the text of the story "Too Poor for Divorce" by clicking here, or you can view the video below:
WYFF, our local NBC affiliate in Greenville, SC, ran a story yesterday which analyzed the effect of the economic recession on divorces in South Carolina. I was interviewed for this story, which you can see HERE.
I noted that there has been a drop-off in the number of divorce filings over the last fifteen months, which was verified by the South Carolina Judicial Department. In fact, the number decreased each and every month in 2008 except October.
I explained that "people are always going to get divorced" but that "until the economy rebounds I think it'll continue in that same trend." The reporter, Mark Allen, did an excellent job with this story, and I enjoyed participating in it.
To help children get through this difficult time, he suggests that parents understand that sadness is normal and that it's actually good for the children to get it out. He also recommends that parents talk with their children, and to do so lovingly and in a reassuring manner. Mr. Neuman has developed a Letter Writing Exercise for Kids to help them express their feelings. If you or someone you know is facing this situation, I highly recommend that you view the materials on Oprah's website by clicking here.
South Carolina Lawyers Weekly reported in its January 19, 2009, edition that "A Divorce Fast" has withdrawn its business from South Carolina after numerous complaints from its customers and an investigation from our state Attorney General's office.
This company advertised in the attorneys section of telephone books in numerous cities around the state (including Greenville and Spartanburg), offering an email service that purported to allow people to download divorce forms. Apparently, it charged fees from $125 to $500, but it then failed or refused to provide follow-up service after the sale to its customers.
Even worse, the forms that were downloaded were often inadequate or incomplete, which resulted in its clients basically wasting their money and still being left trying to represent themselves. As is the case with many of these "money saving schemes," I suspect that many people end up paying much more trying to resolve the problems caused by their attempt to save a few dollars in the beginning.
According to the article, "A Divorce Fast" has agreed to reimburse all of its customers in South Carolina that the Attorney General's office investigators can locate within a year. If you or someone you know has fallen victim to this company, you can contact the Unauthorized Practice of Law Section of the South Carolina Attorney General's office at (803) 734-3606.
Can South Carolina grant me a divorce if I was married in North Carolina?
Answer:
The State in which you were married does not have anything to do with the State in which you can get divorced or separated. If both you and your spouse have lived in South Carolina for more than three months (or either one of you for over a year), then SC will have jurisdiction to address your separation/divorce case.
Posted on December 30, 2008 by J. Benjamin Stevens
Question: I have been married four months, and I love my husband completely. We have had our share of arguments, and he has now told me that he wants a divorce. I do not want to divorce, because I think our problems are fixable and are not uncommon in marriages. Is there anything I can do to not let my husband divorce me?
Answer: The short answer is "no." In South Carolina, if one spouse wants a divorce, he or she will be able to obtain it, regardless of whether the other spouse agrees. It is always a sad situation when one spouse wants a divorce but the other does not, but you must face the reality that this will happen if he chooses to pursue it, and you should take the necessary steps to protect yourself and your interests accordingly.
While divorce proceedings may pose a great burden upon parents, they often have a disproportionate affect upon children, who may not fully understand the process. Parental separation can fundamentally shift a child's nascent world view, requiring careful steps to ensure that children are able to soundly cope with the divorce. Although the divorce itself might emerge from personal issues unrelated to children, it is crucial that parents remain focused upon helping children transition during the process:
Encourage open communication from your children. Although the complete scope of the process might immediately escape children, it's important that you take time to allow a child to express his or her feelings about the event. This is a way in which you can both come to understand outside viewpoints, as well as providing you with an opportunity to reach and explain the situation in a manner that resonates with the child. If you have multiple children, it's important to speak to them both individually and collectively, as each child is likely to have a different, personal response to the events unfolding, depending on their age and personality.
Ensure that all children have a stable social safety net throughout the process. Since the fundamental role of the family is to provide a safe setting in which children can learn and grow, it's important that one continue to provide this level of support even during parental separation. Ensure that children are in a safe environment and remain outside any legal or argumentative environments that might surround the divorce; if you understand with your spouse around children, remain friendly and amicable, independent of your internal feelings. Always reach out to your broader, extended social network so that children feel comfortable – allow them to spend time with friends, relatives and counselors so that they have feelings of stability in spite of the changes around them.
Maintain continuity in your own personal life so that you can remain a strong parent. In order to help children cope with a divorce, it's important that one ensure stability in all facets of life, from work to friendships. By maintaining an equilibrium in your life, you can ensure that you'll bring a balanced approach to keeping your life in order so that you can remain strong for your children. It may be beneficial to spend time with a counselor so that you can work through any anxiety or feelings that you have, in order to ensure a proper outlet for those emotions; while it's okay to express yourself around children, one should also ensure that emotions are kept in check and expressed in a structured fashion so children feel comfortable. In order to help children remain strong during a divorce, each parent has to be strong independently.
Keep legal challenges outside of the child's daily life. Although court proceedings are a core part of any divorce, children should not have to grasp the details of the legal fight. Instead, keep the legal details separate from your relationship with your children. When working out a legal settlement, always keep the best interests of your children in mind, as those considerations should trump any financial or situational disputes that might arise in the proceedings. Even during the direct divorce proceedings, ensure that you have enough time to devote to nurturing and taking care of your children.
Allow children an expressive outlet to ensure their lives are well-balanced. While no divorce is fun for children, it's important to ensure that children continue to have elements of joy in their life, from celebrating parties with friends to enjoying time off from school on the weekends. Take time away from the bustle of daily life to take your children to a park or to a nice dinner out with relatives so that they can continue to find enjoyment in life, in spite of the larger situation.
This guest post was written by Maya Richard, who currently blogs about cell phones. She can be reached via email as mayarichard@gmail.com.
Posted on November 12, 2008 by J. Benjamin Stevens
Today, I am pleased to present the following Guest Post from Kelly Kilpatrick:
A divorce is a complicated procedure, legally, financially and emotionally. It’s up to you to make the process as smooth as possible in order to prevent unnecessary stress and expenses. If you’re going through a divorce or contemplating one, here’s what you mustn’t do:
Don’t change lawyers midstream :: It’s your personal prerogative, but changing lawyers anytime during the divorce proceedings adds to the already enormous expense through extra procedures and more time. Make it a point to investigate your attorney carefully before you hire him or her and get someone whom you trust right from the word go, someone who’s both experienced in family law and who comes highly recommended.
Don’t get too emotionally attached to your attorney :: If your attorney’s the caring kind, you may end up literally crying on his or her shoulder unable to take the mental stress any longer. It’s not advisable to get too close emotionally to your attorney because it complicates the process even more. Also, there are laws that prohibit a client and attorney from getting involved romantically or sexually for the duration of the case.
Don’t take financial issues for granted :: Don’t take your future finances for granted once you’ve decided on a divorce. Talk to your spouse about who gets the house, how taxes are going to be paid, how credit card debts are going to be resolved, how joint accounts are going to be handled, how much child support is enough, and about other financial aspects that are likely to affect both of you. If you go through this process as amicably as you can, you’re both going to save a ton of money.
Don’t make your kids suffer :: Just because you no longer get along with your spouse, there’s no reason to take it out on your kids. They’re already going through a rough patch knowing that their parents are about to get divorced and that their life is going to be a sort of tennis match where they’re the figurative balls being batted from one parent to another. Don’t take out your frustrations on them or abuse your spouse when they’re around. Make them understand that even though you both are splitting up, you still love them a lot.
Don’t indulge in physical relations with your spouse :: If your decision to divorce is final and there’s no room for a permanent reconciliation, it’s best to refrain from having sex with your spouse. You may still be living under one roof and sexually compatible, and if the divorce is amicable you may feel that there’s no harm in sleeping with each other as long as no one else knows. But there are emotional complications that will mess up your divorce and leave you with more issues to contend. If you’ve agreed to separate, keep it that way in the bedroom too.
In my opinion, one of the very best family law bloggers is Michael Sherman of the Alabama Family Law Blog. All of his posts are intelligent, well written, and thought provoking. Fortunately for him, Michael is blessed with a very successful practice, but that's unfortunate for his readers because he is not able to post as many articles as we'd like.
Michael published an article last week which listed the following five problems that contribute to divorce along with his suggestions on dealing with each of them. I have summarized his list below, but I encourage you to visit his blog and read his full post:
Money :: Try to get on the same page early, be fair about how the money is controlled, and attempt to understand and accommodate your spouse’s views on money.
Communication :: Communicate deeply and often with your spouse.
Lack of Commitment :: Don't be too self absorbed or tied to instant gratification.
Physical Addictions :: Intervene early and get professional help if your spouse has a substance abuse problem.
Sex :: Infidelity is generally a sign of other problems in the marriage, not the original problem.
This past summer, Robert Kisselburgh published the following article on his Mississippi Family Law Blog:
When you divorced, did you modify your estate plan?
For many couples going through divorce, the focus is on the divorce process and its aftermath. With the wave of emotions involved in the divorce, many forget about their estate plan. Ask yourself some simple questions which apply both during and after the divorce process.
Do you want your soon-to-be ex-spouse making the decisions are to your medical care should you become disabled?
Do you want your soon-to-be ex-spouse to get all your money should you die?
Have you updated the beneficiary forms for your life insurance?
Have you updated the beneficiary forms for your retirement plan?
Have you updated your Will removing your spouse as a beneficiary?
Have you updated your trusts removing your spouse as a beneficiary?
Most individuals forget about their estate plan during and after the divorce. Unfortunately, this might lead to unintended consequences, such as an ex-spouse receiving money you don't want them to have. That is why it is important to talk with an estate planning attorney during the divorce process, or at the very least, immediately following the divorce to ensure that your property is protected and passes to those you cherish most.
Note: If you have questions about your estate plan, contact an experienced attorney (including my law partner, Paul MacPhail) to discuss your options further.
Noted private investigator, Bill Mitchell, Seven Day Detective, published an article last week explaining ten clues that can indicate that your spouse may be having an online affair. I have listed Bill's tips below, but you should click the link below to visit his blog for much more information about each of these items:
If your spouse or partner spends excessive time surfacing the internet.
Are passwords, instant message “buddy lists”, internet email accounts and emails concealed - even protected from you!
If your partner abruptly shuts off the internet and/or computer when you approach.
If the computer and monitor are always positioned to avoid your scrutiny.
If internet history is cleared every day, including chat sessions, instant messaging or your spouse downloads software that automatically rids this information.
Finding computer use after you go to bed, when you fall asleep or in the middle of the night?
Your Spouse exhibits a compulsive need to be online and seems defensive when confronted to stop.
Your spouse shares personal information, photos or events with strangers online.
Plays online games and frequents “personals” chatrooms.
Exhibits the eight warning signs illustrated in “The More You Know – Getting the evidence and support you need to investigate a troubled relationship.”
Posted on September 4, 2008 by J. Benjamin Stevens
If you are facing a separation or divorce, you should read the article by Christina Laun, which contains 100 tips and resources. Some of her tips are listed below, along with a listing of the other categories covered in this excellent article.
Accept that it’s over. Your divorce may have come as a surprise and you may not be the one that wants the split, but hanging on to a relationship where one partner isn’t committed is just going to make you more miserable in the long run. Start learning to accept that your marriage is over and thinking about your life after the split.
Set realistic goals. Like with any breakup, it’s going to take time to get over your divorce. Set personal goals for yourself that are both challenging and realistic to help you get back on track.
Get to know the laws of your state. Depending on the state you’re in, what you’re entitled to after a divorce can vary widely. Read up on divorce law in your state to find out what you’ll be facing in court.
Protect your assets. You may think it can’t happen to you, but some spouses have drained joint accounts, racked up huge expenses and more when they know divorce is on the horizon. As soon as you can, dissolve joint accounts, resolve life insurance policies and make sure other valuables are in a secure, third-party location until the divorce is over.
Be open and honest with your children. If you have children, be honest with them about what is going on. Avoid laying blame and talking bad about your spouse, however, as this will only serve to confuse and hurt children.
Keep it civil. You may be fighting mad at your spouse but screaming at them and being unnecessarily mean won’t make you feel any better. Keep things as calm and as civil as you can.
Be reasonable. Marriage is all about compromise and so is divorce. Be reasonable in what you expect to take away from it so neither of you end up with additional animosity towards one another.
Seek out support. Going through a divorce can be rough and you’ll likely need the support of friends and family to get through it. If you don’t feel you can talk to them, find a support group or therapist where you can vent.
Hire a lawyer you trust. Getting a good lawyer is essential to not getting taken for a ride during your divorce. Try to find someone that your friends and family can recommend or whom you feel comfortable with.
Don’t settle for less than you’re entitled to. It may be tempted to cut negotiations short just to get things over with, but taking less that you deserve will hurt you in the long run. Keep negotiations calm and collected and follow through to the end.
Avoid forcing children to choose sides. No matter who is at fault for the divorce, children are going to love and want to be with both parents. Don’t force children to choose sides or use them to pass on hurtful messages to your spouse.
Keep yourself healthy and rested. With all the stress from a divorce it can be hard to make time to eat right, get enough sleep, and generally take are of yourself. You aren’t doing yourself any favors by doing this, however, so set the time aside to tend to your own needs.
Don’t say or do anything you don’t want to show up in court. You may have a lot of choice words for your spouse, but during a divorce it’s probably better to keep them to yourself. You never know what may be used against you in court.
Question: My husband left about three month ago, and he and I haven't had any contact since then. How long must I wait before I can file for divorce?
Answer: If you have only been separated for 90 days, then neither of you can file for a divorce yet, unless one or more of the fault grounds (adultery, alcohol/drug abuse, or physical abuse) are involved. If there is no fault, then you must live apart for a year before you can file for a divorce. However, you can file for a legal separation now, and in many situations, it is a smart idea to do so and protect yourself and your assets, rather than simply doing nothing for a year.
Question: I have been separated from my spouse for 4 months. I would now like to start dating again. If I do so, can my spouse pursue a divorce from me based on adulery? I am concerned because I don't want to lose my house.
Answer: You have several issues referenced in your question. If you are "legally separated" (meaning you have been issued a Decree of Separate Maintenance from the Family Court), then none of the financial issues addressed in that Order will be changed by any adultery at this point. However, if you are only physically separated (meaning you are simply living apart from your spouse), then any adultery at this point will most liklely have an effect on how the financial issues in your case are decided. Finally, if you are still married, your spouse can file for a divorce on the ground of adultery whether you are legally separated or not.
Question: My wife's attorney recently served me with papers seeking a contested divorce. I now live in a different state from my wife. My wife knows that I have already retained an attorney in the same state in which she lives, but her attorney served the papers on me anyway instead of sending them to my attorney. Do they have to send these papers to my attorney since he has been hired to represent me, or is it my responsibility to deal with them?
Answer: In South Carolina, when a Family Court action is filed, the pleadings are almost always served on the other party, because the attorney usually does not know whether or not that person has hired an attorney. In many cases, people claim that they have an attorney, when in fact they do not or when they have only met for an initial consultation. If the other party really is represented by an attorney, that person can authorize his/her attorney to accept service of the pleadings on his/her behalf. In any event, all you need to do in this situation is simply forward the papers to your lawyer for him to review and handle for you.
Some people are just determined to make divorce as painful and unpleasant as possible. Cristi Trusler of the excellent Austin Divorce Help blog published an article containing the following traits and characteristics that these types of people display. Do any of these sound familiar to you?
Lie. :: It's critical that you and your attorney trust each other. So why not lie to them? That's really a great strategy.
Get your kids involved. :: Divorce is unpleasant enough on it's own. If you really get your kids involved and start using them against each other it's easy to make it much, much worse - on you and your kids. So go ahead, get a good custody battle going. Make your kids miserable. (If you pursue this strategy, I recommend saving money for therapy.)
Start dating immediately. :: If you'd like to make your spouse even less willing to try to reach an agreement, then start dating - and make sure you tell them about it.
Raid the bank accounts. :: This is a great way to let everyone know that you are the "bad spouse." Cut your spouse off from all your assets and don't let them have any money to live or to hire an attorney.
Start making big purchases. :: Spend, spend, spend. This one does two things. First, it's just more stuff to try and divide during the divorce. Second, since money is often an issue in divorces in the first place, it can give you just a little bit more to argue about.
Don't do anything. :: If you really want to frustrate everyone, including your own lawyer, don't do anything. Don't call anyone back. Don't respond to emails or letters or show up for meetings.
Don't listen to your lawyer, get legal advice from your friends and family. :: This is a personal favorite of mine. I know you hired an attorney to guide you thought this legal matter, but he or she couldn't possibly know as much about the law as your aunt Dorothy who has been divorced 3 times.
Hire the most expensive attorney in town. :: There are some attorneys in town that won't even talk to you unless you can pay at least a $25,000 retainer. If you really want to nuke all your family's financial resources while fighting with your spouse, make sure you talk to one of these lawyers.
Hire the cheapest attorney in town. :: This is the opposite end of the spectrum. I was always taught that things were cheap for a reason.
Obviously, no reasonable person would act this way or do any of these things. Divorces can be difficult enough under the best of circumstances, so don't make things any harder than needed on your spouse (or yourself).
According to an article recently published in The (Montreal) Gazette, divorce rates increase as the stock market plunges. The article offers many different explanations, it seems that the key explanation is that the lack of money during bad economic times highlights problems in an already troubled marriage. It should come as no surprise that money has always been a major factor in matrimonial harmony or disharmony. If it seems that divorce is unavoidable, then you should consult an experienced family law attorney to ensure that your interests are protected.
Earlier this week, I published an article which explained ways to protect your finances before your divorce. This post contains more excerpts from the article published Ask The Advisor which looks at the impact of divorce on credit, specifically with regard to your finances and your credit history.
When facing a divorce, it is easy for emotions to overwhelm you and prevent you from focusing on protecting your finances. Some people do not adequately protect their financial interests during the divorce, but the following steps can help repair the damage done in these situations:
Check Your Credit Score :: This is something you should do at least once a year, but it is especially important after major life events. By checking your credit score you can see if your credit has been adversely affected by your divorce. It will also show if there are any debts that you used to share with your spouse that are now being neglected. This will point you in the right direction when it comes time to cancel any joint accounts.
Separate / Cancel All Joint Accounts :: Even if you ended your divorce on very bad terms, you simply must have a sit-down with your ex. Any and all accounts, debts and property that you still share should be separated, canceled or sold. In other words, you must separate your finances like you have separated your relationship. This can be most easily accomplished with your former spouse's help. If he/she won't help, it is time to call your lawyer. Either way, your financial ties must be severed.
Notify Creditors of Your Divorce :: Once you have separated/canceled all of your joint accounts/debts, you are no longer legally bound to your former spouse's current debts. Call all of the creditors who have been bothering you and alert them to this fact. In a perfect world, they would apologize for the inconvenience and never call you again. However, it may take awhile before such calls cease entirely. In addition to notifying the proper collectors, you should right a letter to them as well. That will help them to expedite their file updates.
Going through a divorce can be one of the most significant financial events that you will experience in your life. Not only is a divorce the breakup of an interpersonal relationship, it is also the end of a financial relationship. The excellent financial information blog Ask The Advisor published an article which takes a close look at the impact of divorce on credit, specifically with regard to your finances and your credit history.
As soon as you decide to separate from your spouse, you should begin to take steps to protect your credit, including the following:
Assess Your Responsibilities :: You need to be aware of all the accounts you are responsible for, including bank accounts, mortgage loans, credit cards and utilities. Even if you and your spouse have decided who gets what property, you need to make sure that the right person is solely responsible for their respective belongings.
Dissolve All Joint Accounts :: Rather than trying to divvy up what is owed on your joint accounts and asking your ex to honor their half, you should remove the right person's name from the accounts or cancel them completely. Make sure the both of you do the canceling together, legally. The first place to start is the bank, as most couples share checking and/or savings accounts when they are married. Also, if you are taking possession of one car with both of your names on the note, have your spouse's name removed. Make sure that your spouse does the same thing with any property they take. (If you are still paying for any of this property, then you may have to refinance to get the loan down to one name.) Any bills you paid together, such as your utilities, should be put in one name. As for credit cards, you can try to work with the credit card company and have them transfer half of the balance to two different accounts in anticipation of the divorce.
Sell the House :: A common mistake that people make is giving their house to their spouse after the divorce. This may be due to abandonment or perhaps a well-intentioned arrangement because there are children involved. However, the best thing to do is to sell the house together and divide the profit. After all, no one can predict the future. Countless divorcees have found their credit ruined because their ex let their house go into foreclosure. Explaining to creditors that you are now divorced won't make you any less responsible for a mortgage with your name on it.
Divide Any and All Shared Cash :: In the process of allocating debt, canceling accounts and selling property, you and your spouse will probably be left with some liquid assets. You should, perhaps with the assistance of your divorce lawyers, fairly divide that cash before you walk out of each other's lives. This is the legal, sensible and ethical thing to do.
Document Everything :: Once the courts become involved and your divorce is finally underway, make sure that all of your financial arrangements and agreements are documented. That way, if there are any discrepancies down the road (such as a creditor bugging you about your ex's car payments), you can refer anyone to your official court records. While this may not be a surefire way to get a collector off of your back in a timely manner, you will have the law on your side and the means to protect or restore your credit.
The following is a Guest Post from Ruth Folit, President of Chronicles Software, which explains how their program LifeJournalcan be utilized to help you in your Family Court case:
Do you want to your win your divorce or custody case? Divorce lawyers tell us that keeping good notes is key to winning your case. When you tell your story in court—and the other side denies your allegations—your detailed, dated notes about your spouse’s or ex-spouse’s behavior will offer solid evidence that strengthens your case.
LifeJournal, journal software, is an easy and effective way to safely keep your notes.
LifeJournal, which runs on your Windows computer’s hard drive, lets you securely record and organize your notes. You can password protect your journals, making the journal private. Additionally, the files are encrypted, so that your can feel even more secure that others won’t be able to read your journal.
LifeJournal automatically enter the time and date of each new entry. LifeJournal lets you assign topics to entries, so you can quickly search for particular entries—by date, by topic, and more. You can print out a set of journal entries and give them to your lawyer.
You may also want to keep a journal for working out the emotional issues that often emerge during a divorce. However, divorce lawyers warn that it’s best not to include your personal writings with your notes that you’ll bring to court. LifeJournal has a solution. You can create two different journal writers, so that the two journals—the journal for court documentation and the journal for personal use—are separate.
KidsHealth.org has published a website, A Kid's Guide to Divorce, which contains lots of helpful, therapeutic information for children of divorcing families. As you might expect, the information presented at this site is clean and simple. Some of the topics covered are:
What Is Divorce?
Kids Can't Cause Divorce!
Kids Can't Fix Divorce!
But I Feel Like My Whole World Just Fell Apart!
Life After Divorce
When To Speak Up
The Future
If you are going through a divorce, you should check it out to see if it is right for your kids. You can visit the site by clicking HERE.
Because people learn from their bad experiences, second marriages tend to be more successful than first marriages. Although many people who divorce have successful subsequent marriages, the divorce rate of remarriages is in fact higher than that of first marriages.
Living together before marriage is a good way to reduce the chances of eventually divorcing. Many studies have found that those who live together before marriage have a considerably higher chance of eventually divorcing. The reasons for this are not well understood. In part, the type of people who are willing to cohabit may also be those who are more willing to divorce. There is some evidence that the act of cohabitation itself generates attitudes in people that are more conducive to divorce, for example the attitude that relationships are temporary and easily can be ended.
Divorce may cause problems for many of the children who are affected by it, but by and large these problems are not long lasting and the children recover relatively quickly. Divorce increases the risk of interpersonal problems in children. There is evidence, both from small qualitative studies and from large-scale, long-term empirical studies, that many of these problems are long lasting. In fact, they may even become worse in adulthood.
Having a child together will help a couple to improve their marital satisfaction and prevent a divorce. Many studies have shown that the most stressful time in a marriage is after the first child is born. Couples who have a child together have a slightly decreased risk of divorce compared to couples without children, but the decreased risk is far less than it used to be when parents with marital problems were more likely to stay together “for the sake of the children.”
Following divorce, the woman’s standard of living plummets by seventy three percent while that of the man’s improves by forty two percent. This dramatic inequity, one of the most widely publicized statistics from the social sciences, was later found to be based on a faulty calculation. A reanalysis of the data determined that the woman’s loss was twenty seven percent while the man’s gain was ten percent. Irrespective of the magnitude of the differences, the gender gap is real and seems not to have narrowed much in recent decades.
When parents don’t get along, children are better off if their parents divorce than if they stay together. A recent large-scale, long-term study suggests otherwise. While it found that parents’ marital unhappiness and discord have a broad negative impact on virtually every dimension of their children’s well-being, so does the fact of going through a divorce. In examining the negative impacts on children more closely, the study discovered that it was only the children in very high conflict homes who benefited from the conflict removal that divorce may bring. In lower-conflict marriages that end in divorce—and the study found that perhaps as many as two thirds of the divorces were of this type—the situation of the children was made much worse following a divorce. Based on the findings of this study, therefore, except in the minority of high-conflict marriages it is better for the children if their parents stay together and work out their problems than if they divorce.
Because they are more cautious in entering marital relationships and also have a strong determination to avoid the possibility of divorce, children who grow up in a home broken by divorce tend to have as much success in their own marriages as those from intact homes. Marriages of the children of divorce actually have a much higher rate of divorce than the marriages of children from intact families. A major reason for this, according to a recent study, is that children learn about marital commitment or permanence by observing their parents. In the children of divorce, the sense of commitment to a lifelong marriage has been undermined.
Following divorce, the children involved are better off in stepfamilies than in single-parent families. The evidence suggests that stepfamilies are no improvement over single-parent families, even though typically income levels are higher and there is a father figure in the home. Stepfamilies tend to have their own set of problems, including interpersonal conflicts with new parent figures and a very high risk of family breakup.
Being very unhappy at certain points in a marriage is a good sign that the marriage will eventually end in divorce. All marriages have their ups and downs. Recent research using a large national sample found that eighty six percent of people who were unhappily married in the late 1980s, and stayed with the marriage, indicated when interviewed five years later that they were happier. Indeed, three fifths of the formerly unhappily married couples rated their marriages as either “very happy” or “quite happy.”
It is usually men who initiate divorce proceedings. Two-thirds of all divorces are initiated by women. One recent study found that many of the reasons for this have to do with the nature of our divorce laws. For example, in most states women have a good chance of receiving custody of their children. Because women more strongly want to keep their children with them, in states where there is a presumption of shared custody with the husband the percentage of women who initiate divorces is much lower.10 Also, the higher rate of women initiators is probably due to the fact that men are more likely to be "badly behaved." Husbands, for example, are more likely than wives to have problems with drinking, drug abuse, and infidelity.
Adultery is still one of the leading causes of divorce in South Carolina, and many of these affairs begin online. Noted private investigator Bill Mitchell has published an article discussing the following 10 Clues of An Online Affair:
Your spouse or partner spends excessive time surfacing the internet.
Passwords, instant message “buddy lists”, internet email accounts and emails are concealed or even protected from you.
Your partner abruptly shuts off the internet and/or computer when you approach.
The computer and monitor are always positioned to avoid your scrutiny.
The internet history is cleared every day, including chat sessions, instant messaging, or your spouse downloads software that automatically rids this information.
Your spouse uses the computer after you go to bed, when you fall asleep, or in the middle of the night.
Your Spouse exhibits a compulsive need to be online and seems defensive when confronted to stop.
Your spouse shares personal information, photos or events with strangers online.
He/she plays online games and frequents “personals” chatrooms.
Your spouse exhibits the eight warning signs illustrated in “The More You Know – Getting the evidence and support you need to investigate a troubled relationship.”
The housing market is terrible these days. In fact, it is so bad that some couples who want to divorce are faced with the difficult and unpleasant decision to (a) postpone their separation/divorce until the housing market rebounds, (b) continue to reside together during the divorce because neither can afford to move until the house sells, or (c) sell the house now for much less that it may be worth.
I have had this exact situation arise in several cases over the last year or so, and it is a difficult problem to work through. Fortunately, we can usually find a workable solution, but the fact remains that the down market is making an already tough situation that much more difficult for many people
Why do people get divorce? Though every couple's relationship is different, the reasons that they split up usually are not as varied as you might think. I came across an article which listed five main reasons of divorce, and I would concur that these encompass the vast majority of all divorces:
Communication Problems. A couple may already be experiencing communication problems even before their marriage. Expectations may not have been made clear or certain issues that could affect a marriage were not brought up. Discussing feelings about aspects that are personally important is also crucial but may not always be practiced by couples. Some couples may put little weight on pre-marital issues only to realize during marriage that they should have clearly set things in black and white or that hey should have been better listeners. Communication issues before marriage can get worse after getting married.
Financial Issues. Another major cause of disagreement between married couples is, of course, financial matters. Married couples could squabble over such issues as shared financial responsibility, unequal financial status, undisclosed financial state, over spending and lack of financial support. Evidence suggests though that money is not always the sole or primary cause of divorce. Nonetheless, it is still a significant factor. Again, the lack of communication over financial issues is the real culprit here and not money per se.
Forms of Abuse. All forms of abuse are possible causes of divorce. This does not just include intentional and habitual physical battery. Abuse may also come in the form of sexual abuse and emotional abuse. One partner may actively seek to degrade his/her partner through harsh language. In some cases, abuse can also be in the form of a spouse abusing drugs or alcohol or excessive gambling. There may be no physical or verbal abuse but the other partner would understandably have a difficult time managing finances and daily life with an addicted spouse.
Marital Infidelity. Marriage is a mutually exclusive arrangement between two parties. This is of course unless both partners privately consent on their own to see other people while remaining married to each other. Otherwise, one may seek to divorce a spouse if evidence of infidelity is clearly obtained.
Sexual Problems. One essential aspect of marriage is sex. Couples are expected to consummate or perform the act. That is unless a person knows and accepts before marriage that one partner has some sexual problems. In some cases, sexual dysfunction or disinterest may begin after tying the knot. If a couple is unable to resolve this, it may become a reason for divorce.
NBC's Today Show featured a story this week on asking your spouse for a divorce, which included interviews with lawyers, counselors, and divorced spouses. If you or someone you know is considering separating or divorcing, it is well worth viewing.
MyFox Chicago aired a report last week on the ways that new technology has worked its way into divorce cases. The description for their report is listed below
Going through a divorce has rarely been easy. But these days, high-tech tracking devices are making it easier than ever for things to get ugly. Cell phones, text messages, and GPS devices are getting more spouses in trouble than ever before. Larry Yellen tells us how more people are deciding that all's fair in love and divorce.
This story was both interesting and well done. You can view the story by clicking HERE.
Sometimes even the best marriages don't work out and divorce becomes inevitable. However, that does not mean that war must also inevitable. For instance, consider the current divorce case by actor Robin Williams.
Mr. Williams and his wife have agreed to have a "respectful" divorce. Specifically, they signed an agreement to remain respectful of each other during their court proceedings, which states
We will strive to be honest, cooperative and respectful as we work in this process to achieve the future well-being of our families. We commit ourselves to the collaborative law process and agree to seek a positive way to resolve our differences justly and equitably.
In a perfect world, all divorcing parties would approach the dissolution of their marriage in such a mature, constructive manner. The parties and their children would fare better, and the cases would generally proceed much quicker and cost less.
A local candidate for County Council finds himself the target of public accusations of breaking up another man's marriage. The husband claims that the politician had an affair with his wife, and he has been driving a truck around town with a large placard that says "__ WHO IS RUNNING FOR COUNTY COUNCIL DIST. 1 HAD AN ADULTEROUS AFFAIR WITH MY WIFE __." (Note: I am omitting the names of those involved for this post, but they can be found in the article specified in the link below.)
The politician claims that he was only helping a longtime friend who was in an abusive relationship. He and the wife both deny that their relationship was sexual in nature. However, the husband was granted a divorce from the wife on the ground of adultery last November, and a private investigator reported seeing the wife and the politician at his home, a restaurant, and a hotel in a nearby town. Further, the investigator claims that he saw the wife and the politician kissing.
I previously posted a discussion of how nasty divorces can become when they involve a public figure. This case is a peek into the deep hurt that a spouse can feel when he believes (rightly or wrongly) that his spouse has cheated on him and how tough it is to let those feelings go, even after divorce. I have found that people get over these feelings at varying rates, and unfortunately some never do.
In many cases, clients want "revenge" against their spouse and/or the paramour. I caution my clients against such conduct, and I urge them to consider the short term "good feeling" that they might get from such conduct and to weigh that against its long term consequences. Once they do so, they see that it is simply not worth it to seek such revenge.
For instance, what if the parties in this news story have children? What if the husband causes the politician to lose the election, but he is still not satisfied? Where will it all end? I would venture to guess that it will end up back in court -- unfortunately that could be any combination of family court, civil court, or criminal court.
The news media is abuzz this morning about former actress and playwright Tricia Walsh-Smith's YouTube video in which she rants about her divorce case. Apparently, she is upset that she signed a pre-nuptial agreement, and she has chosen to air all of her husband's dirty laundry in public via YouTube.
Is this a good idea? Not in a million years! All she is doing is putting information out there that at best will irritate or anger the judge and at worst will be give her husband additional ammunition to use against her in the divorce case. I can only imagine how upset Ms. Walsh-Smith's attorney is this morning at the mess his client has created for herself.
This is a perfect example of a divorce party having a half-baked idea and then acting on it without thinking through all of the ramifications. I had a case years ago where my client's wife had cut off one sleeve on all of his business suits. It probably made her feel better at the time, but she certainly was not laughing once the judge had his say on her actions.
The following tips can help you get a fair divorce and save you a great deal of time, stress, and money:
Once you have made the difficult decision to end your marriage, begin to focus on the financial issues as soon as possible.
Get a good attorney to ensure you receive an equitable settlement, and get the best attorney that you can afford.
Remember that most states determine the value of the marital assets (including retirement accounts) based on the date the case is filed with the Court.
Consider when to file your case and whether it might be worthwhile to file sooner or later if you know when significant financial events will occur, such as receiving a bonus at work.
If the mortgage is listed in your name (or both name) and your spouse will receive the house, insist that he/she refinance to remove your name from the mortgage as soon as possible.
Make copies of all recent financial statements, so that your attorney will have an accurate listing of the accounts, balances, etc.
A researcher has found that young female lawyers and other women professionals have slightly higher divorce rates than their male counterparts.
Law professor Robin Fretwell Wilson of Washington & Lee University is the author of the study. She says her study indicates that "women can't have it all because there is a social stigma to having or being a stay-at-home spouse."
Wilson spoke with the Wall Street Journal about her findings, based on her analysis of 100,000 young professionals in business, law and medicine. She found that 10 percent of women with law degrees were divorced, compared to 7 percent of male lawyers.
Wilson’s study, which will be released next week, also found that female professionals are up to three times more likely to remain unmarried than men.
Economist Sylvia Ann Hewlett, who conducted research on high-achieving women in 2001, theorizes that highly educated women have higher divorce rates than their male counterparts because they are attracted to successful men, and can’t give these men the care and support they need.
Hewlett has this advice for well-educated, high-earning women: Look for a husband who is particularly loving and supportive.
Divorce is not easy. There are many pitfalls and traps awaiting parties that have not educated themselves about the process. People often make bad decisions under stress, or without the guidance of an experienced lawyer. Don’t be one of them. Divorce law isn’t rocket science, but it isn’t always intuitive. Avoid the following 10 divorce pitfalls to get a better result.
During your divorce, you should NOT:
Lie to your lawyer: We are here to help you. Your communication with us is privileged, meaning we can’t tell others about it, except in certain child abuse scenarios. The more we know, the more we can help. We need to know everything, the embarrassing, the ugly, and the secret. If you have a drug, alcohol, or gambling problem, tell us. You have two options: (1) Disclose and likely hear from your lawyer that your secret or problem is irrelevant to the court process, or (2) Fail to disclose and have your case hurt at trial because the other lawyer knows facts you haven’t told your lawyer.
Lie to the court: If you have a trial, the result is directly affected by your credibility. Judges are generally experts at determining who is telling the truth, and who is lying. Not only is lying to the court a crime, but your lawyer may have a duty to stop the proceeding and tell the court if he or she knows you are misrepresenting facts! If you have areas of your case that are sensitive, work with your lawyer on what you are going to say, but don’t misrepresent.
Involve the kids in the process: If your case involves a custody or parenting time dispute, nothing will draw the wrath of the court faster than involving your kids in the dispute. Don’t talk to them about the case. Don’t use them as pawns in the battle against your spouse. Don’t use them as your therapist, or treat them as your peers. Don’t put your spouse down in front of the kids. You are not only harming your case, you are harming your children.
Hide or fail to produce documents: You have an absolute right to see your spouse’s financial documents. Your spouse has an absolute right to see your financial documents. I have seen many cases that could have been simple turn complex and expensive when someone decides to not voluntarily produce records. The court can force you to produce records, and order that you pay your spouse’s lawyer fees incurred in getting the records. Good clients and good lawyers produce documents quickly and voluntarily. I had a case where we asked for some email records from the other side. They did not produce them, and when we filed a motion to compel their production, they tried to tell the court that they had been destroyed. The stunt seriously impacted the opposing lawyer’s credibility with the court.
Refuse to cooperate with a court appointed expert: In divorce and custody cases, experts called “custody evaluators” are routinely appointed to gather information about a family and make a recommendation regarding an appropriate parenting plan. If one is appointed in your case, cooperate. Be on time for appointments. Treat the expert with appropriate respect. Ignoring the requests of the evaluator can seriously harm your position and credibility with the court. An evaluator will likely make negative assumptions about you if you cannot comply with a court’s order to cooperate.
Settle without analyzing your case: Divorce can be unpleasant and emotionally painful. One reaction is to try to get it over quickly. Do not give into the urge to be done with the case before you have a full understanding of the assets and what a fair distribution looks like. You don’t want to be in a position where you are contemplating settlement and your spouse knows more about the assets than you. Prepare and go over a proposed distribution of assets and liabilities with your lawyer. Make sure you know the nature and extent of the assets, and get additional discovery if you don’t. Do not settle prematurely, before you know what is fair.
Fail to try to resolve the case outside of court: Don’t settle early without analysis, but also don’t fail to try to settle. Good lawyers and reasonable people settle most divorce cases without a trial. Many clients benefit from mediation, either through the county courthouse or through a private mediator. Our experience has been that many very difficult settle in mediation with the guidance of a trained expert mediator. You should always consult with your lawyer during the process to make sure you are getting a fair result. Settling also means you choose the outcome rather than have a judge impose an outcome on you. Parties that settle are generally happier long term, and have less ongoing conflict. Even if the other side is unreasonable, you should still make an offer to create a record of your position.
Take out your stress in unhealthy ways: This is the wrong time to up the drinking or other unhealthy behavior. Expect stress from the conflict and plan for it. Take out your stress in healthy ways, like at the gym, sports, or in talking to friends or a counselor. Don’t take it out on your children, or your body through unhealthy behaviors.
Be economically irrational in negotiations: At some point in every case it costs more to continue arguing than what is at stake. Approach your case with a business like mind. Are you really winning if you spend $1000 on lawyers to argue over a $50 lamp? Some (bad) lawyers insist on arguing about every point, without regard to cost. Every issue is a new battle front. A request to resolve one issue results in two more contested issues. In our opinion, these lawyers don’t serve their clients well. Pick your battles. If it costs $1000 to argue over something you can replace at Target for $20, buy a new one, and focus on what is really important.
Be your own lawyer if your case is contested and your spouse is represented: Many judges dislike unrepresented parties. Even experienced divorce lawyers hire experienced divorce lawyers for an objective opinion. Many unrepresented people who think they have a great case find out otherwise after a judge rules against them because they can’t tell the judge everything they want to because of the rules of evidence. If you disagree over property or custody, and your spouse has a lawyer, seek representation.
One of the five grounds for divorce in South Carolina is desertion. The elements that must be proved to get a divorce on the ground of desertion are:
No cohabitation for one year;
Intent of person that left not to resume cohabitation;
Absence of consent by the other person; and
Absence of justification for the separation.
However, this ground is rarely used these days, since the mandatory separation period for a "no fault" divorce was reduced from three years to one year many years ago.
Question: How long do I have to wait after my divorce before I can legally remarry?
Answer: There is no mandatory waiting period in South Carolina that one must wait after a divorce, so as soon as you are legally divorced, you are able to remarry. However, it is very important to note that you are not actually divorced until the Judge signs the Divorce Decree, which does not necessarily take place at the final hearing.
Posted on December 13, 2007 by J. Benjamin Stevens
When you get a divorce, you are not only ending a relationship with your spouse, but you are also dealing with financial issues and time with your children. This process can be stressful, lengthy, and expensive, but with a little planning, you can avoid the following five common -- and costly -- pitfalls:
Being Unprepared
Not Seeking Financial Advice
Asking for the House
Rushing to Court
Failing to Untangle Your Assets
You can click here to read much more information about each of these potential mistakes. If you are facing a divorce, you owe it to yourself to read this article to make sure that you don't make one of these common mistakes.
Posted on December 12, 2007 by J. Benjamin Stevens
Consider the following good, common sense advice:
If you’re like most people facing divorce, you have more questions than information. Even if you and your spouse have agreed on all of the terms of your divorce, you’ll have to follow specific legal procedures to formally terminate your marriage.
Every divorce case is different, and specific laws vary from state to state, but divorce cases generally follow one of two paths:
The parties may reach an agreement, submit that agreement to the court for approval, and receive a divorce decree ending their marriage and setting forth the terms they’ve agreed upon; or
If the parties can’t reach an agreement, the case will be scheduled for a contested hearing, where a judge will consider evidence like financial records, witness testimony, and expert reports on issues like valuation of property and custody arrangements.
There is no substitute for planning, and planning for your divorce can make the process go smother, lower your lawyers fees, and help ensure you emerge on the other end of the case ready to move forward, and with the least amount of emotional and financial damage. The following “Top 10 things to do if you are going to get divorced” is from The Oregon Divorce Blog for those considering divorce:
Consider your other options: While not appropriate in every case, consider if you really want to be divorced. If not, talk to a marriage counselor or other professional who can explore saving your marriage. If the process works, great! If the process does not work, you can at least get help discovering what went wrong, how to cope, and how best to move on.
Consult with and retain a family law attorney: Clients often make strategic mistakes prior to filing. For example, moving out of the family home, even briefly, can impact a custody and parenting time case. We blogged about the difference between consulting a lawyer and retaining a lawyer before. Make sure you at least consult so you know your rights, and how to avoid shooting yourself in the foot.
Copy documents: Your case will be smoother and your fees lower if you have a copy of all essential documents to provide to your lawyer. Obtain copies of pay stubs, tax returns, retirement account statements, bank statements, car and boat titles, real estate documents, insurance polices, etc. If you or your spouse uses financial software to track expenses, save a copy of the file.
Inventory your personal property: Go room to room and make a list of major items of value. You do not need to inventory every muffin tin, but you may end up out of the house for a period of months while the case progresses, and you may forget what is there.
Get a copy of your credit reports: Getting a credit report is very useful in identifying debt, accounts, and what accounts are open and closed. Pull a copy of your report from each of the three credit bureaus or a tri-merge report and your lawyer will thank you.
Establish your own credit and source of funds: If you do not have credit in your own name, apply for them and get several. You will need to establish your own separate credit history, and do not want to be in the position of having your access to funds cut off. If there is a joint cash account, consider splitting it and transferring ½ to a separate account in your sole name.
Keep the kids out of it: Getting ready for a divorce can take lots of time and energy. Make sure the kids don’t suffer any more than necessary by making them the first priority. Do not put them in the middle. Do not argue in front of them. Do not badmouth your spouse in front of the kids. Keep their routines as normal as you can. Stay connected (or get connected) to their activities at school and after school. Courts take a dim view parents that put kids in the middle of the conflict. Just don’t do it.
Know your finances: Make sure you know what you make and are capable of making, what your spouse makes and is capable of making, and where the money goes each month. What are the credit cards? How much is owed? Where are the retirement accounts? Can you earn enough in your current job or will you need your spouse to support you for a period of time? If your job involves travel, will you need a different job without travel if you don’t have a spouse to watch the kids while you are gone? The more you know about the finances the easier it will be to communicate with your lawyer. Knowing the finances and having a plan helps put you in the best position after the divorce is over.
Manage debt: This could be the worst time to increase your debt level. Unless your lawyer tells you otherwise, don’t make major purchases. Don’t go on shopping sprees. Some lawyers advise their clients to contact joint creditors and have accounts closed, or limits reduced to prevent the accumulation of new debt during the divorce.
Take care of yourself: Divorce can be a very stressful experience. Take care of yourself, even before anyone files. Work out. Find a support group, either through your friends or a formal divorce support group. Consider getting counseling. Many clients choose to get into counseling to help with the process, and report back that it was helpful.
A divorced spouse is generally eligible to collect Social Security benefits based on the ex-spouse’s record of work and earnings, said Lita Epstein, author of The Complete Idiot’s Guide to Social Security and Medicare, but it’s not automatic and you should contact the Social Security Administration to see if you’re eligible.
To be eligible, you must clear some hurdles. Following is a summary of the general rules:
Your marriage had to have lasted at least 10 years.
You must be at least 62.
You’re not married.
The ex-spouse must be at least 62.
In general, you won’t automatically receive benefits. Kurt Czarnowski, regional communications director for the Social Security Administration, said “we’re not at the point where you have automatic enrollment in Social Security” in such circumstances.
So visit your local Social Security office or call the agency toll-free at 1-800-772-1213. In the interview process, you’ll be asked whether you’ve ever been married, which will lead the agency to see if you’re eligible for benefits based on another’s record of work and earnings.
Assuming you’re eligible, you’ll receive a monthly benefit based on your record, or on your ex-spouse’s record, whichever will pay you more.
A few other points:
If you have been married more than once, and each marriage lasted at least 10 years, you’re generally eligible to collect Social Security benefits based on either ex-spouse’s record of work and earnings — whichever will pay you more, Epstein said.
If you’re divorced and your ex-spouse has died, you may be eligible to collect a survivor’s benefit based on that ex-spouse’s record of work and earnings, Czarnowski said. Contact the agency to check on the rules and to see if you’re eligible.
There are lots of rules and other details regarding a divorced spouse and eligibility for Social Security benefits, too many to list here.
For more information, read “Social Security: Understanding the Benefits” and “Social Security: What Every Woman Should Know.” (Note: This booklet includes information that applies to both men and women.) For a free copy, visit your local Social Security office, call the agency toll-free at 1-800-772-1213, or visit the agency’s Web site: www.socialsecurity.gov.
Posted on November 19, 2007 by J. Benjamin Stevens
Several months ago, CBS' The Early Show took at look at "changes taking places in modern divorces." Their report focuses on the advantages offered by mediation as opposed to traditional litigation, and it includes three to five minute videos included on the following topics:
Fight-Free Divorce
Divorce Among Senior Couples
Preventing A Divorce
If you are interested in these topics, it is worth spending a few minutes reviewing these videos.
Posted on November 14, 2007 by J. Benjamin Stevens
New clients often ask their lawyer how they can help ensure a good result in their divorce and/or custody cases. The following tips from Jeanne M. Hannah can help clients obtain good results and often save money in their cases:
Be prepared. Clients can gather documents and information about important financial issues, which will help save your lawyer time, which will typically save you money.
Be flexible and prepared to accept change. Understand that financial resources can become stretched during a divorce, and the ability to compromise can be invaluable in helping reach a successful resolution in your case.
Be truthful with your attorney. Your lawyer's ability to help you is only as good as the information that you provide to him. If you fail to provide accurate and truthful information, you are only hurting yourself.
Prepare to use specialists. You will generally obtain better results if you use a lawyer who doesn’t dabble in family law. Sometimes, other specialists may be needed to help with various issues in your case, such as counselors, financial planners, business valuation experts, CPAs, and/or child specialists.
Ask your lawyer for recommendations to a specialist. Your attorney can typically refer you to well qualified experts when the need arises.
Make a list of the goals, needs and interests that are important to you, ranking them in order of importance. Once you draft your list, verify that they are realistic, and then focus on them and don't get distracted.
Be empathic to your spouse’s position. By keeping all avenues of negotiation open, you can determine the other person's goals and thus what motivates him/her to settle.
Reduce conflict. The more you can work to reduce conflict and work toward a solution, the more you can reduce your cost in any case. Also, you should remember that conflicts consume not only money, but also energy.
Remember, this isn't the end of the world. At the end of the day, you want to be able to walk away, to take a break, and to start over while holding your head high, knowing that you handled things in the right way.
You can read much more about each of these tips by visiting Ms. Hannah's blog.
Posted on November 12, 2007 by J. Benjamin Stevens
Choosing the right attorney to handle your family law matter can make a significant difference in the outcome of your case. Knowing what "type" of attorney to choose (and not to choose) can make the process easier on you and can result in a faster, better outcome. Consider the following article by Victor J. Medina on this topic:
I recently fielded a phone call from a business colleague who told me that she had referred me to a friend for matrimonial work. She mentioned that when she was getting a divorce she found that her attorney became too adversarial and impeded the progress of the divorce. She told me that, from her perspective, the divorce attorneys were making it about themselves and not about the clients.
I cringe when I hear that kind of story. One of the hallmarks of our practice is that the client and his/her needs are at the forefront of our minds when dealing with the case. I’ve often told many clients in an initial interview that I have no ego in the case. I can’t tell you how many times I’ve swallowed insult after insinuation about me and my firm because retaliation would have been counterproductive. This type of pliability in a negotiation is necessary because the goal is more important than maintaining ground in the ego game.
I also often have clients come in asking “Are you a fighter? I need a bulldog on this…” or “I really need someone who is collaborative…can you work with my ex’s attorney?” - I usually respond, kindly, that (1) yes, our firm can be all those things and (2) at this point, I’m not sure anyone knows what they’ll need in a divorce. A general way to state it is that they’ll need an attorney who can respond to the situation and can be what the circumstances warrant. I think there are a select few attorneys who can do that - at least in what I’ve encountered on the other side of the table. Most attorneys have one mode and have a reputation for being one thing. Those are the easiest attorneys to deal with (even the screamers) because you know what you’re getting from then and they’re rarely creative in their approach. That is, I almost never have to worry about not seeing the next move coming because it’s all so predictable. On the other hand, the crafty attorney is the one that never approaches the situation from the same angle. I’m on my toes with those attorneys because, having practiced that way myself, I know how crafty they can be.
The short of it is this - when you look for a divorce attorney or someone to handle your post-divorce family law matters, such as custody or support enforcement, seek out those attorneys for whom flexibility is a hallmark. In any divorce “battle”, you may need air strikes, sea power, diplomacy or a combination of four other things. If you restrict yourself to an attorney or law firm that specializes in air power with all the latest bombers, you’ll be vulnerable to the ground attack and may not avoid war altogether.
Was the war analogy too much? Just trying to get the point across.
The following tips can help make your divorce case easier, less stressful, and less expensive:
Locate, organize and copy all financial records. Make one copy for yourself and a second for your attorney. Save the originals.
Close all joint bank and brokerage accounts. If that’s not possible, freeze access to the accounts.
Close all joint credit accounts. Open new accounts in your own name.
Maintain a written record of all expenses run up during the separation. This also includes joint expenses such as bills paid and home improvements or auto maintenance.
Establish your net worth. Keep a record of all income during the separation. Save pay stubs, bank and brokerage statements.
The forced sale of stock or other investments is likely to have tax implications. Consult your financial planner as needed.
Before the settlement conference, make a list of what you seek right down to household goods.
If there’s something you know your soon-to-be ex wants in the property settlement, don’t give it away in a hopeless effort to establish goodwill. Use it as a bargaining chip and trade it for something you want.
Settle out of court. This will cut legal costs and ease your jangled nerves.
The American Bar Association's Section of Family Law publishes charts in its Family Law Quarterly which summarize the basic laws in each state by topic, including custody, alimony and grounds for divorce. These charts are current as of November 2006, and they are useful as a quick reference to both attorneys and clients. Charts are available on the following subjects:
USA Today recently published the following five common mistakes couples make when they separate their finances and tips on how to avoid them:
1. Hanging onto the house at all costs.
Many couples scrambling to obtain a divorce settlement wish to keep the house at any cost. However, financial experts say that more attention should be given to who can afford to maintain the property, pay the mortgage, and manage the taxes. While it is possible to ask for spousal support to help make the mortgage payments, unexpected maintenance costs may pop up, and make home ownership more of a liability than a luxury.
2. Failing to make a clean financial break.
Clean separation of assets and debts is another difficult task, but one that Howard Dvorkin, the founder of Consolidated Credit Counseling Services says is absolutely necessary, or the consequences can be devastating. Although the task may seem insurmountable, “the alternative is much worse,” says Dvorkin. “Having a spouse drive up your debt when you’re not married anymore” can seriously affect one’s credit score.
3. Counting on your ex to honor financial commitments.
Depending on your former spouse to comply with financial arrangements is also a huge mistake, according to this article. Although both parties in a divorce are beholden to a court-ordered divorce agreement, creditors do not fall under that arrangement. If your ex spouse is supposed to pay the mortgage, but doesn’t, “the lender is going to sue both of you,” remarks Melissa Avery, an Indianapolis family law attorney. If your ex fails to pay the mortgage, you may be hurt when applying for future loans.
4. Forgetting to change your will and beneficiary forms.
Wills and trusts can also be seriously impacted by divorce proceedings. If divorced spouses wait unnecessarily long to change a beneficiary on a will, for example, the money may go to the wrong person — your new spouse may get nothing, while your ex spouse inherits the amount provided for in your will.
5. Overlooking taxes.
Finally, NEVER forget which amount of money in your divorce settlement is alimony, and which amount is child support. Whereas child support payments are not taxable to the recipient, alimony payments are. Furthermore, there are limits to how long a person can receive such payments — child support payments can no longer be received once the child turns 18 or is done with college, while spousal support generally ends once the recipient remarries.
Technology is changing the way that people divorce. In the old days, if you suspected your spouse of being unfaithful, you would hire a private investigator, who would follow your spouse to see exactly what he/she was up to.
Today, there are many options available to those who suspect their spouse may be cheating. For instance, The New York Times published an article that looked at digital evidence, such as email messages, history of Web site visits, and cellular telephone records. Better private investigators now frequently use GPS tracking systems to gain information to aid in their surveillance.
Parties sometimes even use somewhat "questionable" methods of obtaining information about their spouses' activities, such as hacking into email accounts, loading spy software onto computers, and/or placing recording devices on phone lines. I should point out that these types of methods could result in liability for criminal prosecution and should therefore be avoided.
In my practice, I have noticed that cheating spouses will often take steps to attempt to cover their tracks. For instance, they may clear their call histories on their cellular phones, delete their internet history, delete emails from both their inbox and trash folders, and/or change their passwords on various accounts.
Resourceful attorneys can issue subpoenas to obtain the opposing party's cellular telephone records, credit card records, and even bank account records to help uncover an unfaithful spouse's activities. I regularly discuss these types of issues with my clients in certain types of cases, and these methods can yield fruitful results.
If you want more information on this topic, you should read "Tell-All PCs and Phones Transforming Divorce" by Brad Stone, published in The New York Times. As mentioned above, this article gives several real world examples of how parties and attorneys are dealing with these evolving technology issues in divorce cases.
Too many people don't know what to look for when they are considering which divorce lawyer to hire. Most people who are interviewing family law attorneys are in a very stressful situation, typically one that they have not been in before. Making an important decision during a particularly stressful time can be a recipe for disaster.
DivorceZone published an article that can be helpful to people facing this situation. This article points out that not all lawyers are created equal, and I would add that not every lawyer is "right" for every case. It is more important in family law cases than other cases that the attorney and the client have a good, working relationship and understand each other. This article lists the following important points to consider when hiring a divorce lawyer:
Specialization. The reality is that the law is extremely complicated and no lawyer, not even a so-called “general practitioner” can really master more than one or two main areas of law. Divorce law itself grows more and more complicated each year. You should choose a lawyer who practices primarily or exclusively in the area of divorce and family law.
Knowledge. Given the high hourly rate you’ll be paying your divorce lawyer, you don’t want to have to pay to give your lawyer a legal education. You want a lawyer with substantial knowledge in divorce and family law issues, who already knows the law and how it applies to your situation.
Experience. There are a lot of complexities to divorce law that you can’t simply learn from a book. For instance, often being able to determine the correct range of alimony that’s appropriate in your case is simply the result of seeing many cases with similar facts. While every divorce case has its unique twists, you will come out ahead if your lawyer has substantial experience.
Good Communication. The biggest beef clients have with divorce lawyers is that their lawyer does not return their telephone calls, emails or other communications promptly. You should find out what a prospective divorce lawyer’s office policy on this. Also, see how long it takes for your prospective lawyer to return your initial call – this will give you a good idea as to the level of service you can expect.
Local Knowledge. Part of the job of a divorce lawyer is to know the attitudes of the local judges and how best to tailor your case for them. As well, even if you never set foot inside a courtroom, it is helpful if the lawyer has experience dealing with your spouse’s divorce lawyer.
Time. Does the divorce lawyer limit his practice to just a few select cases so that he can concentrate on his clients and give them good service, or do they take all clients who walk through their doors? The reality is that the amount of work to resolve successfully the issues arising from a divorce can be quite substantial, and your lawyer will need the time to deal with this.
Fit. It’s important that you and your divorce lawyer get along well. This doesn’t mean that you have to be good buddies with your divorce lawyer and want to invite them to dinner. However, you’ll be going through some of the most difficult experiences in your life with this person. You’ll be revealing some of the most intimate details of your personal and financial situation to this person. Your relationship with this person will last quite a long time. So, it’s important that you’re comfortable with your divorce lawyer.
Compassion. It’s important that your divorce lawyer be understanding of what you’re going through. Are you just a file number, or does your lawyer really care who you are and what you want?
Independent. Ultimately, your divorce lawyer’s job is to fight for you and your rights. However, many lawyers have political ambitions or care more about getting along with other lawyers than giving zealous representation. You want an independent lawyer so that your needs are not sacrificed so that your lawyer can avoid irritating a colleague.
Plan of Action. Is your divorce lawyer able to articulate a plan of action that they are going to take to resolve your case? If not, you will find that your case just seems to amble in no particular direction, raising your legal fees without accomplishing much.
This is the final installment in the excellent series of posts by Michael Sherman of the Alabama Family Law Blog on the steps to take when it becomes apparent that a divorce may be imminent. His series takes an honest, practical approach in showing people how to protect their interests and make prudent preparations in such a situation. Here is Divorce Preparation: Step 13 - Be Good:
Well, we have finally reached the last step in this series of posts on practical steps to consider when you may be facing divorce. I will wrap up the series with two more posts to conclude and summarize the series. But, first, the final step which may seem a bit silly.
It is simply this: Be Good.
Here is the principle: you are about to be under a microscope. You are reading this blog, so I assume that you may be facing a divorce and you'd like to that unpleasant process to be as amicable as possible. Unfortunately, that is not always possible. Your spouse may not share that objective for some reason. They may be influenced by others (lawyers, friends, etc.) that convince them that what you are offering is not fair.
So, there is a chance that your case will end up going to trial no matter how diligent you and your lawyer are about trying to work the case out fairly and quickly. That being said, you should not put ammunition in the gun for your spouse to use against you.
That means no dating, no carousing, and no partying. If custody may be an issue it means making the children your number one priority (they should be that anyway, right?). Even things that are perfectly legal and harmless any other time can be twisted to look suspicious or worse in the hands of your spouse’s lawyer.
Suppose for example that you go out for dinner and drinks with members of the office to celebrate a fellow employee’s birthday. This sounds harmless enough. But, in a custody case these questions may be asked: While you chose to go out drinking with your friends, your spouse was at home taking care of the children, correct? Are you having a romantic relationship with Joe/Jane who was also at the party? How many drinks did you have that night? This is something you routinely did during the marriage, isn’t it (i.e. choosing social events over your family)? You drove home that night under the influence of alcohol didn’t you? Etc.
You get the point. This is a silly example, but why even open yourself up to this line of questioning. Don’t put the judge in the position having to decide whether you are telling the truth that this was a harmless and isolated event.
Spend time with your kids, work, stay around the house, exercise, and attend to your spiritual life. Be above reproach. Be Good. Come to think of it, Its not bad advice whether you are facing divorce or not.
Many cases can get settled simply by getting the parties together to talk. This type of informal meeting is called a "settlement conference." The following steps can help you prepare for a settlement conference and improve the chances of its success:
Identify the issues in your case.
Understand how the law affects your case.
Know the estimated costs of trial.
Remain open to unique opportunities.
Keep a few secrets.
Be determined.
Be ready for a little give and take.
Be patient.
Get it in writing.
You can read much more about each of these steps by clicking here.
This post will follow up yesterday's post about the losses that children suffer when their parents divorce. Today, we will look at ways parents can help their children cope with divorce. The fact is that parents can have a positive impact on this process, if they will do the following:
Reassurance – Reassure them of your love, and your ex-spouses love for them. Remind them frequently that your divorce had nothing to do with them, that they are not at fault, and that your love for them will never change.
Flexibility – Be flexible to meet your child’s needs above your own. If your ex has visitation scheduled for a weekend when your son has a soccer game, let your ex go to the game, and you stay home. Try to work together to meet your child’s needs, and not get petty with visitation scheduling.
Respect – Never, never, never, speak badly about your ex in front of your children. Always be respectful of your ex in words and actions in front of your kids. If you want to sound off, do that with your friends, never your kids.
Curtail Dating – I believe that when you make the decision to divorce, you also make the decision that your kids come first. Don’t begin dating and introducing new people into your kids lives. It will only add to more loss. If you feel the need to date, do so when the kids are visiting your ex, or when they in bed at night. Your time is limited, and it should be spent with your kids. Only introduce someone to your kids if you are engaged and plan on marrying again.
Fake It – Sometimes you won’t feel like being kind towards your ex, and that’s when you’ll just have to fake it. Put a smile on your face, be respectful and nice. Remember, the gift of kindness you are giving is not for your ex, it is for your kids. They need that gift most of all.
In her article, The Devastation of Divorce, Trish Berg states that children of divorce suffer a myriad of losses when their parents divorce. Ms. Berg says that it’s difficult to understand the impact divorce has on the children's lives until we examine the losses they suffer in this process. She lists the following five main losses children experience during divorce:
Loss of Dad - When parents divorce, typically the dad leaves the home, and may not be present much in the lives of the children. This causes an emotional vacuum for the children, and they may feel rejected, alone, and unloved, no matter how much the single parent loves them.
Loss of Money – When dad leaves, so does a lot of the money. Economic resource are, at best, cut in half, at worst, single parent families live in poverty.
Loss of Security – Kids of divorce often move to a new, smaller home, in a new town, with a new school. They now have to visit their dad. If mom and dad then begin dating, an entirely new stress is added to their lives. Their sense of stability and security is shaken as their world has forever changed.
Loss of Harmony – Many kids whose parents divorce feel caught in the middle. The fighting may have stopped, but now Mom may talk negatively about dad, and dad may gripe about mom, all in front of the kids. Parents may play games with visitation, and hold the children as emotional ransom. This loss of harmony causes tremendous chaos and stress for kids.
Loss of Simplicity – Life for children of divorce can get very complicated. They have to schedule everything they do, and remember what weekends they are visiting dad so they don’t play in a soccer league with games then. They have to split heir holiday time - Christmas Eve with dad, Christmas morning with mom. And when life events hit, they have to worry about mom and dad being in the same place. Who will come to my eighth grade graduation? Will they see each other? Will they fight? Family life is now complex and chaotic, and that will last for the rest of their lives.
Note from Ben Stevens: While I agree with many of Ms. Berg's points, her article presumes that the mother will have custody of the children. Of course, as I have discussed previously on this Blog, that is not necessarily the case. Fathers who are active in their children's lives have a good chance of getting custody, if they sincerely desire and take the proper steps to do so.
Cheating spouses now have one more way to get caught in their philandering. Electronic toll collection systems are emerging as a powerful means of proving infidelity. Attorneys can obtain records from these services and use that information to prove that a spouse was not where he/she claimed to be.
The Associated Press reports that agencies in seven of the twelve states surveyed indicated that they would provide electronic toll information in response to court orders in criminal and civil cases, including divorces. Even if the state agency refuses to provide the information, it can frequently be obtained from the other spouse through the normal discovery process.
This is the twelfth installment in the excellent series of posts by Michael Sherman of the Alabama Family Law Blog on the steps to take when it becomes apparent that a divorce may be imminent. His series takes an honest, practical approach in showing people how to protect their interests and make prudent preparations in such a situation. Here is Step 12 - Consider Hiring a Private Investigator:
We continue our series on practical steps to consider when you are facing an imminent divorce. We are now on to Step 12 - Consider hiring a private investigator.
Alabama law does consider “fault” when deciding how to divide property in a divorce. Additionally, depending on the facts, adultery can affect custody determinations.
If your spouse is committing adultery, then you are better off having proof of it then not. This is the case even where you fully intend to settle your case. In fact, often having proof of an affair is what gets the case settled at terms that are fair to you.
It is not fun to find out your spouse has cheated, and you may be like many of my clients who have said they would rather not know. But, you should think carefully before making that decision. Talk to your lawyer. Assuming you’ve chosen a good one, listen to their advice. If you are going to get proof of it, now is the time. Your lawyer should be able to talk to you about the costs involved (it is not cheap) and how to improve your chances of making the surveillance effective, should you choose to go that route.
Reasons to consider filing your taxes separately from your spouse:
You don't trust your ex. When you sign a joint return, you can be equally liable for all taxes, penalties and interest owed. If your ex-spouse doesn't pay, the IRS can come after you for the whole amount. However, you might be able to claim innocent spouse relief if your spouse greatly understated his or her income and you had no way of knowing that when you signed the return.
Your ex owes back taxes, back child support from a former marriage or has defaulted on federal student loans. If you file jointly under such circumstances, any refund you may be entitled to may be put toward your ex-spouse's debts.
One of you has a low income but very high deductions. In this case, it may make more financial sense to file separately.
If you file separately, you forfeit the following credits and deductions:
Earned income tax credit (EITC)
Child and dependent care credit
Adoption expenses credit
Hope and lifetime education credits
Qualified tuition deduction
Student loan interest deduction
Ability to deduce some of your Social Security benefits
The following factors determine which parent gets to claim the children as dependents on his/her tax returns:
Unless there is an agreement or order stating otherwise, the custodial parent – that is, the parent with whom the child lives -- normally takes the dependency exemption when you file separately.
The custodial parent can sign a formal release enabling the non-custodial parent to claim the child. This often makes sense if the noncustodial parent earned the most income during the year.
The dependency exemption cannot be divided, even if the children lived with each parent one-half of the year. Only one parent can claim the exemption for each child.
Unlike with alimony payments, child support payments are not deductible to the parent who makes them, nor is it treated as taxable income of the parent who receives them.
Even if you decide to file separately from your spouse, you must still cooperate with him/her for these tax issues, for the following reasons:
You must put your spouse's name and Social Security number on your return, so the IRS can match up both your returns to see if there are any discrepancies.
You either both have to itemize or you both have to take the standard deduction.
If you do itemize, coordinate who takes which deductions that you normally would have taken together as a couple.
If you file jointly, decide before filing your return just how you'll divvy up the refund or the tax bill, and consider put any such agreement in writing or make it part of a court order.
1. Because people learn from their bad experiences, second marriages tend to be more successful than first marriages. Although many people who divorce have successful subsequent marriages, the divorce rate of remarriages is in fact higher than that of first marriages.1
2. Living together before marriage is a good way to reduce the chances of eventually divorcing.
Many studies have found that those who live together before marriage have a considerably higher chance of eventually divorcing. The reasons for this are not well understood. In part, the type of people who are willing to cohabit may also be those who are more willing to divorce. There is some evidence that the act of cohabitation itself generates attitudes in people that are more conducive to divorce, for example the attitude that relationships are temporary and easily can be ended.2
3. Divorce may cause problems for many of the children who are affected by it, but by and large these problems are not long lasting and the children recover relatively quickly. Divorce increases the risk of interpersonal problems in children. There is evidence, both from small qualitative studies and from large-scale, long-term empirical studies, that many of these problems are long lasting. In fact, they may even become worse in adulthood.3 4. Having a child together will help a couple to improve their marital satisfaction and prevent a divorce. Many studies have shown that the most stressful time in a marriage is after the first child is born. Couples who have a child together have a slightly decreased risk of divorce compared to couples without children, but the decreased risk is far less than it used to be when parents with marital problems were more likely to stay together “for the sake of the children.”4 5. Following divorce, the woman’s standard of living plummets by seventy three percent while that of the man’s improves by forty two percent. This dramatic inequity, one of the most widely publicized statistics from the social sciences, was later found to be based on a faulty calculation. A reanalysis of the data determined that the woman’s loss was twenty seven percent while the man’s gain was ten percent. Irrespective of the magnitude of the differences, the gender gap is real and seems not to have narrowed much in recent decades.5 Continue Reading...
This is the eleventh installment in the series of posts by Michael Sherman of the Alabama Family Law Blog on the steps to take when it becomes apparent that a divorce may be imminent. His series takes an honest, practical approach in showing people how to protect their interests and make prudent preparations in such a situation. Here is Step 11 - Keep a diary:
This post continues are series on practical steps to take when a divorce is imminent. We are now on Step 11: Keep a diary/calendar.
It is important to documents all of the major events that occur until the divorce is final. Your lawyer will likely want your help in reconstructing a chronology (a list in order by date) of the major events that led to the filing of the divorce. Additionally, you should begin keeping careful records of new events and incidents as they occur. Simply note the date, what happened and any witnesses that may have observed it. In the unfortunate event that your case drags on, events will begin running together and your memory may fail you. Don't rely on it.
Instead, keep an ongoing diary. Then provide this to your lawyer periodically so he is aware of any significant facts in your case.
I should note that you really should discuss this recommendation with your lawyer before implementing it. Some lawyers may not want you to have an ongoing record like this because it could be obtained by the other lawyer during the discovery phase of the trial (something that could have a negative effect on your case). Or, they may want you to take certain steps to attempt to protect it from begin discoverable by the opposing lawyer. These are technical legal issues beyond the scope of this blog. Suffice it to say that you need to talk this over with your lawyer first.
Numerous studies have found that people who grow up in a broken home have an increased risk of developing depression or having problems with anxiety later in life. However, MSNBC.com reports that a new study suggests that divorce may not be the root of the offspring's depression after all, but rather that the cause of the divorce and the depression might be the same: shared genes.
The study's lead author, Brian D’Onofrio, an assistant professor of psychology at Indiana University, said, “This study suggests that the increased risk of emotional problems in the offspring of divorced parents is due to genetic risk shared by parents and their offspring. This is contrary to what a lot of people have assumed in sociology and psychology.”
However, Prof. D'Onofrio cautioned that this doesn’t mean that divorce has no impact on children. His research found that divorce led to an increased risk of alcohol abuse in people who grew up in broken homes. One of his earlier studies found that other problem behaviors could also be traced to divorce, such as skipping school, getting into fights and stealing.
Last week in Ray v. Ray, the S.C. Supreme Court found that the wife's actions rose to the level of extrinsic fraud when she engaged in a scheme to hide assets from the court, using an unknown third party not subject to discovery during the divorce proceeding. The Court found that Chewning v. Ford Motor Company does not limit extrinsic fraud to conduct perpetrated by attorneys. An act of perjury or concealment of a document coupled with an intentional scheme to defraud the court justifies the setting aside of a judgment due to extrinsic fraud.
Question: I decided a while ago that being married is just not for me anymore. When I told my husband about my feelings, he moved into the guest room in our house, and we have now been sleeping in separate bedrooms for about six months. I read that there is a waiting period in South Carolina for a no-fault divorce. If we have been living in separate bedrooms and not having sex, will the Court count these last six months toward the required waiting period?
Answer: In South Carolina, you must live apart for over one year in order to get a “no fault” divorce. Living apart means that you must live in separate residences under different roofs. In other words, living in separate bedrooms in the same house does NOT count toward the one year requirement.
If you have already decided that you do not want to be married anymore, then you should act to protect yourself and your interests. If any of the following factors apply, you should consult an experienced family law attorney to discuss whether you will benefit from obtaining a legal separation:
You have any significant assets, including real estate, retirement accounts, a business, investments, etc.;
You have any minor children with your spouse;
Your spouse has committed a fault ground for divorce (adultery, physical abuse, alcohol/drug abuse, etc.);
You suspect that your spouse’s financial situation may worsen in the near future; or
You suspect that your spouse may dispose of marital assets or incur additional debt in the near future.
One of the most frequently overlooked areas of family law is that of tax consequences. Many family law practitioners do not fully understand the in's and out's of the applicable tax laws, which can result in their clients having unwanted "surprises" down the road. Alan Pearlman of the Chicago Family Law Blog recently published the following article, which does a great job of analyzing and explaining the major tax issues for property division, child support, and alimony that divorcing parties should consider.
Prior to filing for divorce, various federal tax considerations should be reviewed due to their potentially profound implications. Among the major issues commonly covered in a divorce decree or agreement are: alimony, sometimes referred to as "spousal" or "separate maintenance" support; division of property; and child support. Each has its own tax treatment and implications.
Division of Property
Most divorces involve a division of the property owned by the couple. Such a division of property is not usually a taxable event, i.e., neither owes taxes nor gets a deduction from income because he or she receives certain property as a result of the divorce.
There are, however, tax implications following divorce that affect future taxes. More specifically, selling personal and real property in the future may require spouses who received such property (pursuant to a divorce) to pay taxes in connection to that property.
Personal and real property have a "basis" for federal tax purposes. The basis is usually the purchase price of the property. When the property is sold later, the amount by which the sales price exceeds the basis is called "capital gain." Capital gain is usually taxable at special rates. Thus, when property distributed pursuant to a divorce decree is subsequently sold by the receiving spouse, the receiving spouse may be required to pay taxes on the proceeds of the sale.
For example, in a divorce, the wife may receive the family home while the husband might receive stock or other investments equal in value to the house. If the house has a lower basis than the stock, when both are sold, the husband could end up with significantly more money, because he owes less capital gains tax.
On the other hand, under tax law applicable at the beginning of 2004, the first $250,000 (for individuals) or $500,000 (for couples) of the taxable gain on the sale of a qualifying personal residence is exempt from tax. In light of these tax issues, selling the house before the divorce, then dividing the proceeds, might make more sense.
Child Support
The parent who is granted custody of the child or children from the marriage, usually receives a set amount of money per month as "child support." Child support payments are not includable in the taxable income of the receiving spouse and are not tax deductible by the spouse making the payments.
If the written agreement or divorce decree orders both child support and alimony and the spouse making the payments pays less than the required total amount, for tax purposes, the child support obligation is deemed paid in full first. Only money exceeding the amount of the child support obligation is treated as alimony.
Alimony or "Spousal Support"
In general, for federal income tax purposes, alimony and "separate maintenance payments" are "deductible" from the income of the spouse paying and includable in income for the recipient. "Deductible" for federal income tax purposes means it is subtracted from a taxpayer's gross income before taxes are calculated, resulting in lower taxes. Taxpayers with a threshold amount of deductions must file a particular form with the IRS when paying income taxes and list such deductions.
Between the time a couple separates and a divorce decree is granted, one spouse may pay money for the support of the other spouse. These payments are deductible as long as they are made pursuant to a decree, court order or a "written separation agreement." In order for alimony payments to be deductible, federal tax laws and regulations require the following:
The payments are made in cash, check or money order (no promissory notes, transfers or use of property, transfer of services, etc.) to the spouse, or to a third party in lieu of alimony at the written request of the recipient spouse, stating the payments are intended as alimony, and the request is received before the tax return is filed
The divorce decree, order or the written agreement of the parties does not identify the payments as something other than alimony
The spouses do not file a joint return with each other
The spouses are not members of the same household when the payments are made, if they are legally separated under a decree of divorce or separate maintenance – separation within the family home is not sufficient
There is no liability to make the alimony payments after the death of the recipient spouse – if part of the payment amount continues after death, that portion is not deemed alimony, and if all of the payment continues, none of it is alimony
The alimony payments are not treated as child support
There are some actions anyone can take to improve their chances of having a more favorable outcome and avoid some of the problems that occur during a divorce. Seven of the best tips from Texas family law attorney, Dick Price, are listed below:
Be prepared. If you know ahead of time that you will (or may) be going through a divorce, it really pays off for you to gather documents and information about important issues, such as your finances. You may uncover unknown assets or you may just have proof of the existence and values of assets, which would probably help save quite a bit of money.
Plan for changes and be flexible. Realize that your family will become two separate units and that will stretch your resources. You may have to change your short- and long-range goals. In almost every case, someone virtually "starts over" and often both parties really struggle. Accept the need to compromise and be open to new ways of doing things.
Be honest with your attorney. He or she can’t do nearly as good a job with faulty information. Virtually everything you tell an attorney is confidential, so don’t hold back.
Prepare to use specialists. Attorneys can be very good helping you with the law, facts and procedure, but they often don’t know as much about specialty areas such as taxation as a CPA or divorce financial planner does. The process can move faster and better if you use (as needed) a:
Counselor/therapist, if you are sad or mad.
Financial planner, if you don’t have much experience in finances.
Business valuation expert for small businesses.
Child specialist to help find solutions for visitation, child support issues, living arrangements, etc.
Look at the big picture. Don’t get lost in insignificant issues or in keeping score to see who wins the most points. If you start to slip into arguing about tiny issues, make yourself go back up to the broader issues and get your spouse off the small stuff. Focus on the goals, needs and interests that are important to you. It doesn’t matter what your spouse is gaining or claiming to gain or wants to argue about. Leave the small stuff alone and stay true to your essential goals. You will be truly successful if you can achieve your important goals and needs.
Practice "putting yourself in your spouse’s shoes". Empathy can really help you in a number of ways. Since 90-95% of divorces settle, negotiations are a major part of any divorce. You can better understand and respond to your spouse’s requests and offers if you understand what important to him or her and what factors will motivate them. Being able to figure out what your spouse is motivated by can help you create settlement options that will be acceptable and even welcome to your spouse.
Reduce conflict. The more you fight, the more it costs. That should be obvious. You can choose to start or continue battles, or you can decide to work for solutions.
Following these tips will improve your chance of success, no matter how you define success. At the least, you should have a divorce with less fighting and more attention to the important issues.
The Pennsylvania Family Law blog recently posted an article which takes an interesting look at the reports that the divorce rate is falling. Of particular interest to families in South Carolina is the speculation that one of the primary reasons the divorce rate is declining is that many more people are choosing to live together without getting married.
Of course, South Carolina is one of the few states that still recognizes common law marriage if certain elements are met. This is important to remember because couples living together may find themselves in a common law marriage situation, which means that they will still need to go through the divorce process to legally conclude their relationship.
The above-referenced article discusses the following theories about the declining divorce rate in this country:
Divorce rates are down because less people get married. Rather, they live together. In fact, the number of couples living together has increased by a factor of 10 since 1960.
Divorce rates are falling in couples who are college educated. The rationale being that in such families both parties may work, reducing financial stress, and allowing the couples to remain married.
In some areas, the stigma of being divorced has increased. Couples in these areas may be working harder to stay married.
One thing to think about is that it doesn't matter to the children whether their parents are married or just live together when they split. Either way, the children suffer the loss of their family.
This is the tenth installment in the series of posts by Michael Sherman of the Alabama Family Law Blog on the steps to take when it becomes apparent that a divorce may be imminent. His series takes an honest, practical approach in showing people how to protect their interests and make prudent preparations in such a situation. Here is Step 10 - Stay Put (until further notice):
We are nearing the end of our series on practical steps to take when you are facing an imminent divorce. We have reached Step 10 - Stay Put (until further notice).
One of the most common questions I am asked by my clients is whether they can move out of the house. In most cases my answer to them is to stay put. It is not the answer most of my clients want.
I know that things are stressful. I know that they will likely get worse before they get better. Unfortunately, there are several reasons to avoid leaving. The most important ones are the following:
It could jeopardize your custody claim. If you end up in a custody dispute, then if you leave the house and the children remain there with your spouse you will almost guarantee that you will not receive primary custody. If the case becomes contested, it could drag out for many months (even a year or two). If your spouse has had primary physical custody that entire time and you’ve had alternate weekend visitation, then unless your spouse has made major mistakes in the interim, they will likely maintain primary custody.
It could affect your property interests. You’ve moved out. Your spouse pays the mortgage the entire time the case is pending. Some judges may factor that in when making the property division.
You will lose leverage in the negotiations. This is big. You want the divorce. Your spouse doesn’t. You decide you have to get out of the house. You move to an apartment and are paying your rent and the home mortgage. Now under the Pre-trial Status Quo Order you may be required to keep paying it as long as the case is pending. You have just given your spouse a major incentive to drag out the litigation. I see it happen all the time. Eventually you decide to settle for much worse terms because you can’t keep paying for two households. Do not make this mistake.
Moving out of the house can have dramatic effects on the case. Do not do it without discussing it with your lawyer and giving it a great deal of thought. You should know, also, that some judges will consider a motion for temporary possession of the residence pending the trial. This varies dramatically from county to county (and sometimes even from judge to judge) so you will want to discuss it with your lawyer.
It goes without saying that if domestic violence is an issue, then all of this is moot. You will need to take whatever steps you must to protect yourself. Just make sure you let your lawyer know what is going on. In the case of domestic violence, your lawyer may actually be able to have your spouse removed from the house.
The National Marriage Project, located at Rutgers, The State University of New Jersey, provide sresearch and analysis on the state of marriage in America and educates the public on the social, economic and cultural conditions affecting marital success and child wellbeing. The Project has released its "Top Ten Myths of Divorce". These myths are summarized below, but the article itself contains much more detail, including cites to studies supporting its conclusions.
Myth #1: Second marriages tend to be more successful than first marriages.
Fact: The divorce rate of remarriages is in fact higher than that of first marriages.
Myth #2: Living together before marriage reduces the chances of eventually divorcing.
Fact: Those who live together before marriage have a considerably higher chance of eventually divorcing.
Myth #3: Divorce may cause problems for many of the children, but those problems are not long lasting and the children recover relatively quickly.
Fact: Divorce increases the risk of interpersonal problems in children, and there is evidence that many of these problems are long lasting and may become worse in adulthood.
Myth #4: Having a child together will help a couple to improve their marital satisfaction and prevent a divorce.
Fact: Couples who have a child together have a slightly decreased risk of divorce compared to couples without children, but the decreased risk is far less than it used to be when parents with marital problems were more likely to stay together “for the sake of the children.”
Myth #5: Following divorce, the woman’s standard of living plummets by seventy three percent while that of the man’s improves by forty two percent.
Fact: The woman’s loss is actually twenty seven percent, while the man’s gain was ten percent.
Myth #6: When parents don’t get along, children are better off if their parents divorce than if they stay together.
Fact: Parents’ marital unhappiness and discord have a broad negative impact on virtually every dimension of their children’s well-being, but so does going through a divorce. Except in high-conflict marriages, it is better for the children if their parents stay together and work out their problems than if they divorce.
Myth #7: Children who grow up in a home broken by divorce tend to have as much success in their own marriages as those from intact homes.
Fact: Marriages of the children of divorce actually have a much higher rate of divorce than the marriages of children from intact families.
Myth #8: Following divorce, the children involved are better off in step-families than in single-parent families.
Fact: Step-families tend to have their own set of problems, and they are no improvement over single-parent families, even though typically income levels are higher and there is a father figure in the home.
Myth #9: Being very unhappy at certain points in a marriage is a good sign that the marriage will eventually end in divorce.
Fact: All marriages have their ups and downs.
Myth #10: It is usually men who initiate divorce proceedings
Fact: Two-thirds of all divorces are initiated by women.
Bill Mitchell, Seven-Day Detective, says that the most commonly asked question he receives from potential clients is whether they should confront their spouses? He doesn't recommend such confrontations, and he believes that such conversations are usually not productive because "cheating spouses lie."
Mr. Mitchell recommends that his clients pay particular attention to the spouse's activity and actions. In other words, watch your spouse's behaviors rather than hearing verbal messages. He also suggests analyzing records like phone bills, which can help convey a story and often give clues to either the identity of your spouse's paramour or days and times that your spouse is with that person.
Attorneys should be sure that their clients understand the basics of what "burden of proof" must be proved in their divorce cases. The more a client knows, the more helpful he/she can be in obtaining the necessary evidence to help the attorney prove the case and obtain the divorce.
Each of the divorce grounds has certain, specified elements that must be proven. For instance, in order to be granted a divorce on adultery, a party must prove by "clear and convincing" evidence that his/her spouse had both “inclination and opportunity” to have intercourse with a person of the opposite sex. However, the law does not require absolute proof of adultery.
It is usually necessary to have some corroborating evidence in addition to the testimony of the suing party. There are numerous ways to prove divorce grounds. For instance, in cases of physical cruelty, treating physicians can testify about medical treatment rendered or witnesses can testify about marks and bruises they have seen. In adultery cases, pictures of the spouse and lover acting romantically or entering an apartment or motel are sometimes sufficient. In habitual drunkenness cases, the Court can consider things such as prescription records, checks at liquor stores, or pictures of empty liquor bottles.
In rare cases, the Judge may not require corroborating evidence if he is thoroughly convinced there is no collusion. Collusion means the parties have conspired to fake the grounds for divorce. Collusion is illegal and leads to perjury and is also unethical and improper.
This is the eighth installment in the series of posts by Michael Sherman of the Alabama Family Law Blog on the steps to take when it becomes apparent that a divorce may be imminent. His series takes an honest, practical approach in showing people how to protect their interests and make prudent preparations in such a situation. Here is Step 8 - Address the Credit Account:
We pick up with Step 8 in our series on practical steps to take when a divorce is imminent. Step 8 is Assess how to handle the credit accounts.
If a divorce is imminent you do not want to be liable on any accounts on which your spouse has charging privileges. It is not unheard of for an angry spouse, upon learning of a divorce, to go on a shopping spree. Likewise, some lawyers may advise their clients to take out cash advances on joint cards to provide a cushion while the divorce is pending or to charge a large amount in lawyer’s fees on to joint cards.
You will want to consider canceling such joint accounts or at least reducing the spending limits. If they are an authorized user on charge cards in your name, see what steps the credit card companies require to remove them as an authorized user.
Also consider home equity lines of credit. You may need to consider whether you should close it or restrict access pending the resolution of the divorce.
Whatever you do, do not neglect thinking seriously about how to handle this issue, and discuss it with your lawyer before making a final decision.
The New York Times reports that the national per capita divorce rate has steadily declined since its peak in 1981 (5.3 divorces per 1,000 people) and that it is currently at its lowest level (3.6 divorces per 1,000 people) since 1970. Experts disagree as to the cause for the decline. Some point to more couples living together without marrying, while others believe that divorce rates are indeed falling substantively among college-educated couples but not among less-affluent, less-educated couples.
City officials in Chicago recently removed the above-pictured steamy billboard for a law firm specializing in divorce. The ad, which proclaimed "Life's short. Get a divorce," was up for only one week before its removal. Numerous complaints were lodged against the ad by citizens, who found the scantily clad models objectionable.
Other attorneys also complained because they believe the billboard to be undignified and unprofressional. Some, including John Ducanto, past president of the American Academy of Matrimonial Lawyers, have gone so far as to call on the Attorney Registration and Disciplinary Committee of the Supreme Court of Illinois to sanction the attorneys responsible for this ad.
The actual reason that the city removed the billboard was not due to the complaints, but rather because the law firm did not obtain the necessary permits before erecting it. The attorneys responsible for the ad claim that it was removed without due process. Of course, they also report that calls to their firm increased dramatically during the short time the billboard was posted.
If you have a child who has had to deal with a divorce, you should know about a A Kid's Guide to Divorce. This website explains divorce in helpful language from a child's point of view. Divorce can be a scary thing to grownups, so you can only imagine how children must feel about it. The website has sections titled "Kids Can't Cause a Divorce!" and "Kids Can't Fix a Divorce". It is available in both English and Spanish versions.
Arkansas attorney Kevin Hickey recently discussed the most common reasons that people get divorced? He says that while most people think that infidelity is by far the most common reason, it is not in his experience. He believes that the following reasons are:
Poor communication
Financial problems
A lack of commitment to the marriage
A dramatic change in priorities
Infidelity
There are other causes we see a lot, but not quite as often as those listed above. They are:
Failed expectations or unmet needs
Addictions and substance abuse
Physical, sexual or emotional abuse
Lack of conflict resolution skills
As you can see, many of the problems can be addressed and possibly even avoided if both spouses can work together on solving them, typically through some type of marriage counseling. Mr. HIckey wisely advises that divorce is the last resort -- NOT the first option. You should try to save your marriage first.
This is the seventh installment in the series of posts by Michael Sherman of the Alabama Family Law Blog on the steps to take when it becomes apparent that a divorce may be imminent. His series takes an honest, practical approach in showing people how to protect their interests and make prudent preparations in such a situation. Here is Step 7: Assess the Financial Accounts:
We continue with our series on steps to take when divorce is imminent. We are on to Step 7 which is Assess the Financial Accounts.
If you’ve completed the prior steps in this series, then you already know what accounts exist and what the balances are. You need to make a decision about what to do with them.
It is an unfortunate reality that one of the first things that some spouses do when they learn/decide a divorce is imminent is to raid the accounts. This is typically done after receiving particularly bad advice from an adversarial lawyer or a well meaning, but poorly informed friend.
In a perfect world neither party would touch the financial accounts except to pay normal household bills until after the divorce is over. However, if this was a perfect world, you would not be reading this blog, and I would be in another line of work because divorce lawyers would be unnecessary.
That being said I do not recommend that you clean out the accounts. Doing so immediately escalates the conflict and stress of divorce. It also will not be well received by the divorce judge.
So, you don’t want to clean out the accounts, but you want to be protected from your spouse cleaning them out. If you have a reasonable fear that your spouse will raid the accounts, the only reasonable solution that I know is to remove one half of the funds from the accounts and put them in a new account in your own name. Do not hide, dispose, or waste the money. Document carefully where every penny is spent because you will likely need to make an accounting of it later in negotiations or at trial. Additionally, you should not do this for the regular checking account out of which the household expenses are paid unless there is a substantial balance in the account over and above the amount needed for paying the current month’s bills. You do not want to take action that would cause checks to bounce.
I don’t make this as a blanket suggestion. If the money can be kept there and neither party remove it, that is preferred. Another option for certain types of accounts is to put a freeze on the account. Obviously that is only practical for accounts that are not regularly needed to pay bills and regular expenses.
Before you decide how to handle your financial accounts, consult with your lawyer. If they are suggesting you go take all of the money out without a good reason, I would seriously reevaluate the whether that lawyer shares your desire for a civilized divorce.
There are certain truths in all family court cases -- no matter how famous the parties involved or in which state the case is filed. For instance, James E. McGreevey, the former governor of New Jersey, is going through a "contentious" divorce. Last Friday, the judge in that case urged the McGreeveys to use “common sense” during their split.
The New York Times article about their divorce case illustrates the following common themes:
Judges want parents to use “common sense”
Judges want parents to facilitate age-appropriate activities
Judges want parents to minimize the potential effects of the proceedings and the parental conflict on the child
Judges focus primarily on parenting skills, not side issues like sexual orientation
Judges don’t like parents accusing each other of every imaginable error or misdeed
Judges don’t want to micromanage a child’s life
Judges will employ methods to reduce conflict and to help resolve child-related disputes, such as the appointment a parenting coordinator
Certain divorces or other family cases can benefit from the use of a private investigator. Investigators can be very helpful in obtaining documentation regarding lifestyle, assets, income, roomates, friends, paramour and parents, including their criminal history, work history, demonstrating hidden affluence, locating and interviewing witnessess, and obtaining information regarding abuse or neglect.
The best way to select and hire an investigator is to find someone referred to you by a lawyer. You can also look in the yellow pages, and remember that these investigators typically do more family work. You should insist on an investigator who is licensed by the South Carolina Law Enforcement Division. Beyond that, there are several advanced certifications which may distinguish one investigator from another, such as the national designation of Professional Licensed Investigator (PLI) or Certified Legal Investigator (CLI).
When hiring a private investigator, costs are always a consideration. Costs for a private investigator in South Carolina can vary widely, but they are typically in the $50 to $75 per hour range. You have the right to a written contract at the time you are contracting the service. The average for an infidelity surveillance typically run about $1,500 to $2,500 to have a real chance of likely success.
In every family law case, whether divorce or child custody/visitation case, there are issues of both law and fact. Private investigators can help make the facts become clearer. Solid, verifyable facts can affect the outcome of cases. Even the greatest attorney in the world wants facts on their side, and hiring a private investigator may be the best way to get those facts brought to light.
Source: This article was adapted from the article "Hiring a Private Investigator For Your Texas Divorce or Texas Family Law Case" by Sean Y. Palmer, published at his Texas Family Law Resource blog.
This is the sixth installment in the series of posts by Michael Sherman of the Alabama Family Law Blog on the steps to take when it becomes apparent that a divorce may be imminent. His series takes an honest, practical approach in showing people how to protect their interests and make prudent preparations in such a situation. Here is Step 6 - Establish Your Own Credit:
We are now on to the sixth step in our series on preparing for divorce. The sixth step is: Make sure you have your own credit established.
If you do not have your own credit history, you should begin the process of establishing it now. Obtain a gas card and a credit card. You will need to have your own credit established after the divorce. And, the sooner you begin the process the better. So, don't wait until after the divorce. You can start this immediately.
Once you've obtained the accounts, you can imrpove your credit by using the cards and then paying them off each month. At this point, it is important that you use these cards only to the degree that you can pay them off each month. Your goal is to establish a favorable credit history, not to run up a bunch of debt.
Once your divorce is finalized, it is time to begin laying the groundwork for your future. Finances are an important part of becoming self-sufficient and nurturing the new you. Here is a checklist of items that are important to cover when ensuring your finances are headed in the right direction.
Establish Yourself Financially. If you haven't already, you want to make sure you have a credit card as well as a checking and a savings account in your name. It is important to maintain or begin building your credit as soon as possible.
Understand Your Divorce Ruling. In order to make smart financial decisions, you need to understand fully the financial ramifications of your divorce. Will you be paying or receiving alimony? How will these payments be structured? What property or assets will you be receiving and when? Are you eligible for a portion of your former spouse's social security payments? Take time to discuss these issues with your lawyer to be sure you understand them fully.
Pursue the Paperwork. Pay careful attention to all details and documentation surrounding your legal and financial status. Make sure you change any beneficiary information on insurance policies or pension plans. Be sure to adapt your will, trusts or estate planning documents to reflect your current intentions for the assets they cover. Also, take the time to make sure any documents concerning power of attorney or guardianship have been updated.
Be Insured. Now that you are on your own, you want to make sure that you have all the necessary forms of insurance to protect yourself and your property. This includes health insurance, life insurance, car insurance and homeowner or renters insurance. Make sure all forms of insurance are in your name and that you understand the terms and conditions of each policy. Remember that you need to create a filing system for copies of all your financial documents and to keep an extra copy of these important papers in a safety deposit box.
Educate Yourself. You don't want to jump into major financial decisions before getting your bearings and making sure you fully understand the landscape. Many people find themselves in a situation where they are responsible for financial tasks that they never had to perform in their marriage. Take time to educate yourself and understand your financial options. Use some of the online resources listed at the bottom of this page or seek out a financial expert who can help you grasp a better understanding of your money matters.
Audit Yourself. You don't want April 15th to roll around only to realize you aren't sure about your tax status or what to do next. Work with your attorney and your ex to ensure any outstanding tax filings from your marital period are filed. Make sure you have the knowledge or the support of a financial expert to ensure you can continue filing your taxes on time and correctly.
Create a Financial Plan. After you have assessed your financial situation, made all the appropriate revisions to reflect your single status and gained the knowledge you need to manage your money, then it is time to create a financial plan that includes your budget, debt repayment and a savings/investment strategy. Depending on your financial situation, you may want to utilize the assistance of an expert to ensure you develop the best plan possible.
Military.com recently presented the following five suggestions to help you financially prepare for divorce:
1. Gather all necessary information & make copies:
In many divorce cases, one spouse generally assumes the responsibilities of maintaining the household's financial foundation, leaving the other spouse to the household's up-keeping responsibilities. During the marriage, this may seem to be a convenient partnership, but in a divorce, this tends to leave one spouse unaware of what the other spouse is doing with respect to finances such as: income, expenses, investing, credit cards, loans, family business, etc. If you are contemplating divorce, the first step you should take is to gather all financial information and make copies. It is amazing how documents come up missing once divorce is being discussed between spouses.
Getting these documents through an attorney at a later date can be quite costly. You want to have them up front, whether they're originals or copies. The types of documents you want to have are your most recent: bank statements, credit card statements, investment account statements, retirement account statements, loan applications, last three to five years tax returns & W-2's, property tax bills, mortgage statements, credit report, etc. In other words, anything that has bearing on your financial situation.
2. Accumulate some cash:
Depending on the type of divorce you may go through, the process can be potentially expensive. Once you are beyond contemplating divorce, start to save some cash each week to accumulate some liquid funds. What you know is you want a divorce, what you don't know is how this divorce will affect you financially. Not only will you need some liquid money to live on, but you could need to hire legal representation, financial experts, and/or mental health professionals to guide you through your divorce and serve as your advocate.
Establishing some cash is a necessity because you will need to pay these people in the event you need use them. Some divorce professionals will not work for you without a down payment, and the last thing you want to happen is not to be able to hire someone because you haven't planned properly.
3. Determine the type of divorce you will have & mentally prepare for it:
Not all divorces are the way they are portrayed on television, roughly 5 percent of divorce cases go to court. Not all divorce cases require hiring an attorney. In the state of Wisconsin, nearly 65-70 percent of divorce cases are “Pro-Se,” which means without legal representation. You want to have an idea of what type of divorce you will have and mentally prepare yourself for the costs.
In my experience with divorcing clients, a litigated divorce tends to be the most expensive regarding fees. If you are in an amicable divorce situation, you may not need to seek the legal support that you would in a highly litigated and disputed case. You may only need assistance with the financial aspects of your divorce. If finances are the only areas of dispute, than seek assistance from a divorce financial analyst, and after those issues have been resolved they can refer you to an attorney that will draft your settlement agreement. This saves time, money and provides for a better relationship with one another post-divorce.
There are other areas of dispute that require other professionals in a divorce. For example, let's assume that you and your soon to be ex-spouse have no real issues except placement of your children. This is a perfect opportunity to seek guidance from a child specialist and/or mental health professional to determine what scenario's are best suited for your children. Then after you come to an agreement find an attorney to review and draft the legal documents necessary to finalize your divorce.
Divorce is emotionally detrimental, the last outcome you need is for it to be financially detrimental as well. You don't want to go into the process blind and each end up with a $20,000 legal bill, when your only issue pertained to dividing retirement accounts, for example. Do your research and find out what professionals you need to minimize costs.
Here is a list of your divorce options:
Legal Separation – best used for couples that do not want to finalize divorce for various reasons (i.e. religious, health insurance, child support, maintenance, etc.).
Pro-Se – best used for couples with few disputes, few assets, and no children.
Mediation – best used for couples who have issues to settle, but no reasons to go to court (i.e. financial issues, custody issues, placement issues, etc.).
Traditional – best used for couples that are non-cooperative and want to fight.
Collaborative – best used for couples with assets, children and disputes that are seeking an amicable divorce and guidance through a team of professionals (attorneys, financial specialists, mental health professionals, etc.) that assist them through a mediation-style process.
Cooperative – best used for couples with assets, children and disputes that are seeking an amicable divorce and a team of professionals that assist them through a mediation-style process.
Determining this will give you an estimate of what a divorce may cost you.
4. Make a detailed list of assets, debts & monthly income before your first consultation:
After you have determined the type of divorce you will go through, prepare your current financial position and have it ready for your first meeting with a divorce financial analyst. This step will save you time and money. The more detailed you are, the more cost effective it will be for you. You also want to make sure that you have an understanding of your monthly expenses as well as income. One area that is commonly argued, is the household expenses incurred by each spouse. On your detailed list show actual expenses that can be supported by credit card and/or bank account statements. Numbers don't lie, and these documents can serve as a support item for negotiating proposed settlements and property division.
Knowing what your spouse earns in income is equally important when divorcing. You need to know all sources of income from: bonuses, cash under the table, exercised stock options, what they are deferring into retirement accounts, etc. Previous years tax returns and W-2's will have this information.
5. Choose the right type of financial professional that can give you expert advice:
When selecting a financial professional, be certain they have an area of expertise in divorce financial analysis and divorce financial counseling. Some financial professionals hold themselves out as divorce planners, but have ulterior motives such as booking new clients for asset management or tax preparation purposes. Look for the CDFA, CDP and/or CDS credentials. These credentials assure you that your financial professional is credible and competent to deal with the financial aspects of your divorce. These designation's mean that your financial professional has taken the necessary tests and acquired the education to hold themselves out as a divorce financial planner.
There are many advantages in retaining a divorce financial professional, some of these benefits are: financial analysis conducted early in the divorce process can save time and money, it can also help you avoid long-term financial pitfalls pertaining to divorce agreements, they can assist you in developing detailed household budgets and help avoid post-divorce financial struggles. Most importantly, they can reduce the amount of apprehension and misunderstanding about the financial aspects of the divorce process.
Certified Divorce Financial Analysts also provide other valuable information such as: tax consequences, division of retirement plans, continued health care coverage, stock option elections, debt reduction and much more. They can work with you individually or by collaborating with your attorney to help make financial sense of proposed settlements.
In my succeeding article I will focus on the different types of divorce, and the pro's and con's of each process. That article will explain the unique differences and help you to decide which type is of divorce process right for you.
The Institute for Divorce Financial Analysts reports that about $50 billion a year is spent in North America as a direct result of divorce. Divorces can range from simple to complex, but saving money largely revolves around two strategies: (1) paying less to your lawyer and (2) paying less to Uncle Sam.
The following suggestions can help you avoid wasting money as you go through the divorce process:
Cooperate. This is far easier said than done because feelings of bitterness and distrust are common, but most wasted money stems from emotional decisions and contentious divorces. Your divorce will be very expensive if you need lawyers to help determine who gets the big-screen TV and flatware.
Trim the lawyer bills. It's reasonable that price be one factor in choosing a lawyer, especially if the divorce is unlikely to end up in a court battle. Once you hire a lawyer, use him or her sparingly. An attorney should handle court paperwork and lay out your legal rights, duties and options.
Be prepared. Write down questions for your attorney meetings to make efficient use of your time. Remember, any drawn-out conversations will be billed at the hourly rate of maybe $250 an hour or more. When minor developments happen, don't call your lawyer each time. Instead, keep a journal and update your lawyer periodically.
Use other professionals. Your lawyer is for legal stuff. If you need a therapist, get one. If you need a financial planner, get one. Either will be far better at giving you what you need and far cheaper than billable attorney time.
Use free resources. Library shelves are full of books on divorce, and the Internet has a slew of Web sites. A helpful one is operated by Lee Borden at www.divorceinfo.com. A new inexpensive book is "The IDFA Divorce Survival Guide," written by two leaders of the Institute for Divorce Financial Analysts.
Tax considerations. The old joke is there are three parties to a divorce: the husband, the wife and the Internal Revenue Service. Cooperating spouses can structure a divorce to pay as little tax as possible, but you might need help from a tax pro. The way you split up stocks that have appreciated by different amounts could have big capital gains tax consequence. It may not be an easy decision on who receives the child tax deduction and head-of-household tax filing status. You even may try to time your divorce to happen late in the calendar year or early in the next year, depending on the tax impact of filing jointly or as singles. And it's important to know that structuring payments as child support or alimony can have a big tax impact.
Don't rebound. People who have been in a stagnant marriage sometimes go wild with money, dating every night and spending money frivolously.
This is the fifth installment in the series of posts by Michael Sherman of the Alabama Family Law Blog on the steps to take when it becomes apparent that a divorce may be imminent. His series takes an honest, practical approach in showing people how to protect their interests and make prudent preparations in such a situation. Here is Step 5 - Document & Safeguard Personal Property:
The next step in preparing for divorce is to make two budgets (one that shows the situation in the house before the divorce filing, and one that is your estimated budget for after the divorce).
Most folks don't like to prepare one monthly budget, so I know I'm asking a lot to suggest that it is helpful two prepare two of them. There is a method to the madness though. It is important to know what it costs to run your household currently. Equally important is to have an understanding of what your costs of living will be after the divorce. Let’s take each in turn.
A. Know your current monthly budget
Knowing the monthly budget is important for the following:
In an alimony case, it is critical to show the standard of living and the financial need.
It is helpful in assessing specific needs of the children that may not be covered in basic child support (e.g. particular medical needs or private school expenses).
It will help you in planning your post-divorce budget.
If your spouse is self employed and under reporting his income, showing that monthly expenses exceed what they claim they make can show they are attempting to hide their true income.
A judge may utilize this information to determine temporary support while the case is pending.
You should know this stuff in order to properly manage your finances whether you are getting a divorce or not!
B. Make an estimated budget of post-divorce expenses.
This is important for your personal planning and will likley influence your objectives in the divorce negotiations. You need to know what you will need financially in order to evaluate your settlement options or what you will ask the judge for in a trial.
This will undoubtedly take some estimating on your part. But, that is why it is called an estimated budget. It will be a work in progress. The point is to give some forethought to what your living expenses will be as you start the new chapter in your life.
C. How to make your monthly budgets.
If you already maintain your checking account records on a software program like Quicken then the process is easy. You can simply print out a monthly budget report. If you don’t then you will need to sit down and look through your check register and/or your spouse’s check register for the past three months. This will reveal the expenses you may monthly and quarterly (divide the quarterly expenses by three and enter them in the budget as a monthly expense).
You will then want to think about any annual or semi-annual expenses you may have such as for life insurance, homeowner’s insurance, etc. and convert those to a monthly figure and enter it on the budgets also.
In setting out your budget, try to be as realistic as possible. You should be conservative in your budget (meaning don’t understate the expenses and end up stating a budget that doesn’t realistically meet your needs) without grossly overstating the budget (which a judge would frown on should the case go to court). It is admittedly a fine line. The best advice is to base it on as real numbers as possible.
Bankrate.com suggests the following financial and emotional do's and don'ts to help achieve a smoother divorce:
DO consult with a lawyer. It's a good idea, especially if you have children or assets. Experts say when looking for an attorney, you should ask people you trust for recommendations, and don't cut corners when it comes to good, solid legal help. If you intend to hire a lawyer, start putting aside money for your legal costs, so you can pay the upfront retainer fee often required. The lawyer's hourly rate is billed against the retainer. "To try to navigate without a lawyer would be like trying to do your own open heart surgery," says John Finnerty, a certified matrimonial attorney and chairman of Finnerty & Sherwood in Fair Lawn, N.J.
DO make copies. Photocopy every important, relevant document from the last three years of your marriage. This includes tax returns, mortgage payments, bank statements, pay stubs, stock certificates and bonds – to supply your lawyer or mediator.
DO steer clear of damaging credit problems. Cancel joint credit cards. Experts say if your credit card accounts are in both you and your spouse's names, and they remain open, you are still responsible for any charges made by your spouse. If charges go unpaid, they can end up on your credit report. Get credit cards and accounts in your own name to build your own credit.
DO make sure you're covered. Medical insurance coverage can end in divorce. If you are on your husband's insurance plan, you should be able to continue coverage for up to 36 months under the Consolidated Omnibus Reconciliation Act (COBRA). Under this plan you pay the premiums, which may be expensive.
DO take a home and asset inventory. This will better clarify what exactly needs to be divided. Susan Goldstein, family law attorney and co-author with Valerie Colb of "The Smart Divorce: A Practical Guide to the 200 Things You Must Know," advises you to write down everything you know about your assets and debts, and record the persons who can be witnesses. It's good for people to compile lists. You can't bring your lawyer too much information, Goldstein says. Also consider taking pictures or videos of your home and contents and making copies of family photographs you want to keep. "Family photographs are often a major point of contention," she says.
DO think about tax consequences. For instance, if a stock is valued at $3,000, it may only be worth $2,600 in cash after capital gains taxes are paid. Thus, it would not be the same as receiving $3,000 cash in a divorce settlement. "If couples are trying to provide each with similar amounts of spendable money, they must consider the costs of converting certain assets into cash before deciding how to divide items," cautions Margorie Engel, author, president and CEO of Stepfamily Association of America.
DO choose your assets carefully. When staking a claim in assets, remember that choosing the wrong assets may end up costing you money, instead of making you money. If you want to keep the house, for instance, first educate yourself about the fair market value of your home, says Goldstein. Remember that you'll have to make the mortgage payments and pay taxes, interest, insurance, utilities and maintenance extras. Selling it won't be a picnic, either: The brokerage costs and taxes from the sale will be solely your responsibility.
DO line up your own emotional support. Choose friends you can trust, because you never know who may end up turning on you or even testifying against you later. Consulting with a counselor can keep you thinking clearly in order to focus on your divorce plan. If you anticipate a child custody fight, you may want to take your child to a therapist before it starts. Randy Rolfe, author of "The Seven Secrets of Successful Parents," states that when you have counseling, you'll be less likely to give up and give over things in the divorce.
Experts also recommend that you remain practical -- legally and emotionally -- when planning your divorce. There some things you should never do:
Don't skimp on legal help.
Don't just move out of your home. Unless you fear physical harm, talk to your lawyer before you make your move.
Don't try to do it all. Some cases do need experts like accountants, appraisers, etc. Thinking you can do these things on your own can be counterproductive.
Don't share a lawyer with your spouse. This scenario presents a huge conflict of interest. Most lawyers won't do it, and it could borderline on malpractice.
Don't make revenge the goal of the divorce.
Don't compare your divorce to another divorce. Each case has its own set of facts, with its own personality.
Don't bad-mouth your spouse to your children. It can backfire on you in ways you don't expect.
Don't just think about your actions, but also consider the impact they can have in a case. For example, don't write a letter you would mind being read in a courtroom.
A divorce will affect you legally, financially and emotionally. Although deciding to divorce isn't easy, taking the time to incorporate these do's and don'ts can make the process -- and its financial and emotional consequences -- as uncomplicated as possible.
Divorce is real. Sometimes you are the one that decides you want out, while other times it's your spouse. When faced with divorce, you should be prepared to protect yourself and your interests to ensure that your marriage is brought to a fair and equitable resolution.
One approach to help you deal with divorce is to approach it from a management perspective. This requires you to be informed and educated and to have a plan to manage this process. Here are some tips from EqualityInMarriage.org to help get you started as the manager of your divorce:
Don't Fall Apart: Yes, divorce is an extremely emotional time and it's all too easy to get overwhelmed. But the most important thing to remember is that YOU are the manager of the process. Sitting on the sidelines and watching the lawyers play your game might seem appealing, but the stakes are usually too high for you to be a spectator. Most successful business people have learned the art of balancing the emotional aspects of family and social life while still running a thriving venture. Take that mentality with you and be the active CEO of your divorce process.
Utilize Your Support Network: Balance is another powerful tool in this process. Even as you work to keep the divorce machine running effectively, don't forget you need emotional support. Utilize friends, family, spiritual advisors and, if needed, a therapist to help you deal with the myriad of feelings that accompany this major change in your life.
Keep Good Files: Don't wait until lawyers or the court ask for financial and legal documents to start digging through file cabinets and desk drawers. You ARE going to need copies of any documents related to bank accounts, investments, debt, tax returns, etc. Save yourself time and energy by making copies of all these items as soon as divorce seems a possibility. Start a filing system with these documents and continue to keep records of all meetings, phone calls and financial transactions related to your divorce.
Be Knowledgeable: You can't possibly make wise decisions as the manager of your divorce if you don't understand the terrain. The library, local bookstores and the World Wide Web provide a wealth of information. Our site contains lots of information and resources to help you in the divorce process. Examine all the options from mediation to arbitration to court trials. Realize that laws differ from state to state and become familiar with the legal precedent where you live.
Manage Your Team: Whether it's a lawyer, financial advisor or a therapist, you'll be looking for professionals to join your team. As the active manager of your divorce, it's your job to build the best team possible within your resources. Research lawyers or advisors carefully. Ask for references. Constantly monitor the effectiveness of your team and have honest discussions at the first sign of problems. When all is said and done, you can't blame your lawyer, or anyone else, for a poorly run divorce.
Look to the Future: Some days it will seem like the world is ending. The fact remains, there is life after divorce. If the future seems bleak, start drawing a picture of what you'd like life to look like. We'd suggest that you avoid making any drastic decisions about career, relocation or lifestyle in the heat of the divorce process, but certainly let yourself imagine the kind of future that will make you comfortable and happy.
This is the fourth installment in the series of posts by Michael Sherman of the Alabama Family Law Blog on the steps to take when it becomes apparent that a divorce may be imminent. His series takes an honest, practical approach in showing people how to protect their interests and make prudent preparations in such a situation. Here is Step 4 - Prepare a Budget (or Two):
The next step in preparing for divorce is to make two budgets (one that shows the situation in the house before the divorce filing, and one that is your estimated budget for after the divorce).
Most folks don't like to prepare one monthly budget, so I know I'm asking a lot to suggest that it is helpful two prepare two of them. There is a method to the madness though. It is important to know what it costs to run your household currently. Equally important is to have an understanding of what your costs of living will be after the divorce. Let’s take each in turn.
A. Know your current monthly budget
Knowing the monthly budget is important for the following:
In an alimony case, it is critical to show the standard of living and the financial need.
It is helpful in assessing specific needs of the children that may not be covered in basic child support (e.g. particular medical needs or private school expenses).
It will help you in planning your post-divorce budget.
If your spouse is self employed and under reporting his income, showing that monthly expenses exceed what they claim they make can show they are attempting to hide their true income.
A judge may utilize this information to determine temporary support while the case is pending.
You should know this stuff in order to properly manage your finances whether you are getting a divorce or not!
B. Make an estimated budget of post-divorce expenses.
This is important for your personal planning and will likley influence your objectives in the divorce negotiations. You need to know what you will need financially in order to evaluate your settlement options or what you will ask the judge for in a trial.
This will undoubtedly take some estimating on your part. But, that is why it is called an estimated budget. It will be a work in progress. The point is to give some forethought to what your living expenses will be as you start the new chapter in your life.
C. How to make your monthly budgets.
If you already maintain your checking account records on a software program like Quicken then the process is easy. You can simply print out a monthly budget report. If you don’t then you will need to sit down and look through your check register and/or your spouse’s check register for the past three months. This will reveal the expenses you may monthly and quarterly (divide the quarterly expenses by three and enter them in the budget as a monthly expense).
You will then want to think about any annual or semi-annual expenses you may have such as for life insurance, homeowner’s insurance, etc. and convert those to a monthly figure and enter it on the budgets also.
In setting out your budget, try to be as realistic as possible. You should be conservative in your budget (meaning don’t understate the expenses and end up stating a budget that doesn’t realistically meet your needs) without grossly overstating the budget (which a judge would frown on should the case go to court). It is admittedly a fine line. The best advice is to base it on as real numbers as possible.
Syndicated columnist, college professor, and author Tom McMahon, offers the following guidelines for parents involved in contentious divorces to follow to minimize the negative effects on their children:
Coexist peacefully with your former spouse. This involves putting aside your differences for the sake of the children and supporting each other in the continuing roles as parents. Both parents should encourage each other to maintain contact with the children.
Do not argue in front of your children.
Children need consistency in their lives. Whenever possible, keep the same daily routines. If you share custody, both spouses should agree on the same household routines (bedtime, mealtime, discipline, etc.).
Do not use your children for emotional support during your divorce. Connect with adult friends and relatives for support.
Wait until your children are mostly healed from the divorce before you begin dating.
Each of the divorce grounds has certain, specified elements that must be proven. For instance, in order to be granted a divorce on adultery, a party must prove by "clear and convincing" evidence that his/her spouse had both “inclination and opportunity” to have intercourse with a person of the opposite sex. However, the law does not require absolute proof of adultery.
It is usually necessary to have some corroborating evidence in addition to the testimony of the suing party. There are numerous ways to prove divorce grounds. For instance, in cases of physical cruelty, treating physicians can testify about medical treatment rendered or witnesses can testify about marks and bruises they have seen. In adultery cases, pictures of the spouse and lover acting romantically or entering an apartment or motel are sometimes sufficient. In habitual drunkenness cases, the Court can consider things such as prescription records, checks at liquor stores, or pictures of empty liquor bottles.
In rare cases, the Judge may not require as much corroborating evidence if he/she is thoroughly convinced there is no collusion. Collusion means the parties have conspired to fake the grounds for divorce. Collusion is illegal and leads to perjury and is also unethical and improper.
Before a party may file an action for divorce or separation, at least one of the parties must have been a resident of South Carolina for more than one year, or both spouses must have resided in South Carolina for at least three months.
This is the last portion of the second installment in the series of posts by Michael Sherman of the Alabama Family Law Blog on the steps to take when it becomes apparent that a divorce may be imminent. His series takes an honest, practical approach in showing people how to protect their interests and make prudent preparations in such a situation. Here is Step 2C - Determine Income (Yours and Your Spouses):
Your lawyer will need documentation showing your income (if you work outside the home) and the income of your spouse. This is important for a number of reasons, but primarily for child and spousal support.
If your spouse is a salaried employee then your job is easy. Obtain a copy of the most recent pay stub and the most recent Income Tax Return. If you do not have access to either of these, you can obtain a copy of the Income Tax Return by requesting it from the IRS.
Complete Form 4506, Request for Copy of Tax Return and mail it to the IRS address in the instructions along with a $39 fee for each tax year requested. Copies are generally available for returns filed in the current and past 6 years. You can download the form at www.irs.gov.
If your spouse is self employed, then the job of determining their income becomes much more difficult. This is why discretion about your divorce plans is important. You may want to discreetly question your spouse (or if he has one, his business partner or his partner’s spouse) about income. You can attempt to get copies of bank account statements and financial statements of the business.
Another good way to prove income and assets of a self employed spouse is to obtain a copy of a loan application or net worth statement that they may have submitted to a bank or other lending institution for a loan.
Sometimes it is difficult to prove the actual income of a self employed spouse. At this point, gather the information you can. In the case of a self employed spouse, your lawyer will likely have to help you by using the discovery process to obtain and analyze additional information.
You know the numbers. It's projected right now that about half of all new marriages end up in divorce. It's a horrible statistic that doesn't begin to suggest the emotional and financial strain that it puts on families. Other than the death of your spouse, divorce is probably the most stressful event you'll ever face. I've had women discussing their divorce in my office become violently ill. I've seen hardened fishermen cry in open court during their divorce hearing. Make no mistake – divorce is hell.
So what have I learned after being a lawyer for nearly 30 years and helping many folks go through this difficult process? If you believe that a divorce is in your future, here are 12 things think about:
Don't do it. If you feel there is any chance that you can save your marriage, try it. See a marriage counselor, talk to a therapist, seek spiritual help, eat some humble pie – whatever, but don't take the step of filing for a divorce lightly. In all my years as a lawyer, I've never seen a divorce that wasn't emotionally grueling on the parties and their children. If there is any chance at all of saving your marriage, give it a shot – even if it doesn't work, you'll feel better later on knowing that you tried everything possible.
Get a lawyer. In most states, divorces involve lots of paperwork and a dizzying array of legal decisions. You need to know your legal rights and responsibilities and should talk to an attorney BEFORE you are ready to begin proceedings. Be wary of books giving you legal advice. Divorce laws vary greatly in the United States and you need to speak with a lawyer familiar with the laws in the state where you live.
Kids First. If you have children, it's never too early in the divorce proceeding to consider their needs. How and when are you going to tell them about your decision to file for divorce? Will you tell them yourself, or with your spouse? It's important to make sure that they are told in such a way that it is clear to them that they are not the cause of the divorce, that they are still loved by both of you and that they'll still be taken care of. Children suffer the most during a divorce so it's important that their routines be changed as little as possible. Get or keep involved in their everyday activities. Don't say anything negative about your spouse in front of them. Don't take out the anger and frustration you may feel toward your spouse out on your children. Make them your top priority. Give your children all the love, attention, emotional and financial support you can during this stressful time.
Copy Important Financial Documents. Anything that has to do with your finances should be copied:
Federal and state tax returns;
Recent Pay Stubs;
Bank and credit card statements;
Deeds and real estate appraisals;
Mortgage documents and statements;
Investment and retirement statements;
Wills and life insurance policies; and
Automobile titles.
Don't forget to check your home computer for some of this information. If you use financial software like Quicken or some other program, back up a copy of your entire on-line file and save it to a CD. Note that this is only a partial list of documents – your lawyer may want even more information. Again, this should be done BEFORE you file for a divorce. It's amazing how these documents seem to "disappear" once you file for your divorce.
Find out what you own. Take stock of your possessions. Get out a pencil and paper and write down everything that you own – you may not want to count every spice in the cupboard, but write down major items like automobiles, appliances, jewelry, furniture, antiques or anything else that is valuable. You may want to omit all items under, say, $100 and list the remaining items. You might also consider taking a video of the interior of the house and noting some of the more expensive possessions. Pictures – say with a camera phone – also work well.
Find out what you owe. The importance of getting a clear picture about your income and expenses can't be emphasized enough. To a large extent, divorces are about money. You say all you care about are the children? Well, you need money to support them. You want to stay in the marital home? Do you have the ability to pay the mortgage? Many times only one spouse is directly involved in the day-to-day payment of expenses. If you're that spouse, you probably have a good handle on the debts and expenses of your family. If you're not that spouse, you need to get up to speed in a hurry. Either way, it's time for you to develop a household budget and know exactly where all the money is going. If possible, take a look at your Quicken report or your bank statements or checking account register and determine where you're spending your money and what your debts are at this time. Keep in mind that many people spend quite a bit of cash each week – so you need to factor that into your budget. Knowing your budget and expenses is extremely important in the beginning of the case when spousal support, child support or both might be an issue. It's also crucial later on when you're discussing settlement or going to trial. Once you're living on your own again, you need to know this information to intelligently assess your needs.
Determine your spouse's income. My experience is that many husbands and wives don't really know what their spouses make for money. If your spouse has a regular salary, get copies of his or her W2's and pay stubs. In addition to their regular income, do they receive bonuses, tips or other fringe benefits – like reimbursements for car or housing expenses, employer paid insurance benefits or free meals? Who pays for health insurance and are there any employer contributions? Take into account employment sponsored retirement accounts, IRAs, 401(k)s or annuities. If your spouse is self-employed, owns a business or ever gets paid in cash, it's often difficult to accurately determine income. Get as much information as possible and present it to your lawyer for review. You may need the help of an accountant or other expert to help in this area.
Figure out what happens when you move out. Someone generally leaves the marital home to find another place to live. Once again, BEFORE you decide whether or not to leave, talk to a lawyer. It can have adverse consequences to be the one to leave the marital home and some lawyers routinely advise clients to stay in the marital residence if at all possible (absent abuse). Depending on your state laws, being the one to move out could weaken your position later as it relates to child custody or your ability to ever return to your home. Once someone does leave, you need to figure out how to pay the family debt. You and your spouse are going to have to allocate your debts – if you can't agree on how, the court will do it for you. If you're still paying on debt that you brought into the marriage, this may be considered "non-marital debt" and be your responsibility in addition to the other debt.
Divide up bank accounts. It's best if you do this with your spouse or at least after notifying your spouse. But if you fear that your spouse is going to immediately empty out all your joint bank accounts upon being told about the divorce, consider withdrawing half – but not all – of the money you have in your savings accounts. If you can withdraw half of the money from the checking account without causing a financial mess, you may want to do that too. Put the funds in a separate account in a different bank and don't spend them if at all possible! You'll undoubtedly have to divulge what you did with the money so keep track of it. As usual, check with your lawyer before taking this step.
Know what you can earn. Living in two households is always more expensive than living in one. Whatever you make, it won't seem to be enough. If you earn a regular salary, is there a way for you to work overtime to supplement your income? Do you have any other way to legitimately earn more? If you've been out of the workforce for a while, what type of income can you realistically expect when returning? Do you need extensive training or more education before you return to work? Is your earning limited because you have small children and can only work part time? If you work full time, will that significantly increase your child care expenses? If your job requires extensive travel, will you continue to be able to do it and still see the children on a regular basis?
Take a look at your credit history. Do you and your spouse have credit cards in your own individual names? If not, you may want to apply for them now to establish your own credit history. If your credit is poor, take steps now to improve it. Unfortunately, my experience is that money in a divorce often becomes so tight that bills get overlooked or not paid on time and the credit rating of both spouses suffers. If at all possible, try to not let this happen. You also need to consider canceling credit cards if one spouse routinely runs up huge credit card bills. Another alternative is to reduce the spending limit. Be sure to talk to your lawyer about this as well as your spouse.
Save, save, save. This is advice that you should do long before you even consider getting a divorce. Save as much money as you can in your own name so that you have easy access to cash in the event you need it. If your spouse is the primary breadwinner and moves out and refuses to pay the bills, you need to pay them until a court issues a temporary order indicating who is responsible for payment. Many times, even when filing an expedited request for a hearing, it takes weeks or even months to get into court on a temporary support request. If you're the person moving out, you'll need money for a security deposit on an apartment or to buy appliances and other household items. Start saving now to ease the financial burden that nearly all couples go through when obtaining a divorce. Finally, don't forget the major expense that you and your spouse will both have when getting a divorce: legal retainers.
Posted on February 28, 2007 by J. Benjamin Stevens
This is another portion of the second installment in the series of posts by Michael Sherman of the Alabama Family Law Blog on the steps to take when it becomes apparent that a divorce may be imminent. His series takes an honest, practical approach in showing people how to protect their interests and make prudent preparations in such a situation. Here is Step 2B - Determine What You Owe:
We are still on Step 2 of Preparing for a Divorce. Step 2 is "make an accounting of the family finances." We've discussed determining what you own. This step requires you to determine what you owe.
You will need to make a determination of all of the debts of the marriage without respect to the name in which it was incurred.The Judgment of Divorce will need to address who is responsible for the debt whether it is in your name, your spouse's name, or joint names.
I recommend that each of my clients obtain a copy of their credit report. This allows you to make sure that you know of all of the debt that is in your name. It is not unusual for a spouse to have incurred debt in the other spouse's name without their knowledge. If that has happened, you need to know it before the divorce is final, not after.
There are many ways to obtain a copy of your credit report. You can request a free copy once per year at www.annualcreditreport.com.
Once you see what all debt exists, obtain copies of the statements on these accounts to determine the balances. You may also need the statements if your spouse has made large or inappropriate purchases on the cards.
If you cannot find credit card statements on each of the accounts, contact the credit card company directly and request they send them to you. You may want to check their websites as you might be able to make the request online. I normally want my clients to get a minimum of 12 months worth. Check with your lawyer to see what he recommends.
Posted on February 26, 2007 by J. Benjamin Stevens
This is a portion of the second installment in the series of posts by Michael Sherman of the Alabama Family Law Blog on the steps to take when it becomes apparent that a divorce may be imminent. His series takes an honest, practical approach in showing people how to protect their interests and make prudent preparations in such a situation. Here is Step 2A - Determine What You Own:
We are on Step 2 in our series regarding preparing for divorce. Step 2 involves making an accounting of the family finances. This includes determining what you own.
For some, that may be easy. If you have a good handle on the family finances, then you are a step ahead. If not, then it is time to do your homework.
Many of the assets of the marriage will be obvious - the home in which you reside, financial accounts, vehicles, recreational vehicles, etc. Others may not be so obvious - these include things like artwork, bearer bonds, a spouses deferred compensation, proceeds from a pending lawsuit, etc.
Then there is the possibility that your spouse is hiding assets (this is more likely if they are the ones initiating the divorce or if divorce has been discussed previously).
Review all possible assets. Attempt to gather documentation regardign each one including present value, where possible. Especially look for any recent appraisals of real estate.
If your lawyer is charging you hourly, then any of this information that you are able to gather should save you a lot of money. If there are documents you are not able to obtain, your lawyer may have to get them through the discovery process.
Posted on February 19, 2007 by J. Benjamin Stevens
Michael Sherman of the Alabama Family Law Blog has begun a series of posts on the steps to take when it becomes apparent that a divorce may be imminent. His series takes an honest, practical approach in showing people how to protect their interests and make prudent preparations in such a situation. Here is Step 1: Find a Wise Guide:
An experienced divorce lawyer I know is fond of telling his clients that you don't need a lawyer to get a divorce, but you need them for the consequences of your divorce. He is right. You can likely get a divorce by finding some forms on the internet or hiring a lawyer that advertises for cheap uncontested divorces. If you have no children, a marriage of only a year or two in duration, no assets or debts have been accumulated during the marriage, and you and your spouse agree on everything, then you probably don't need a divorce specialist.
Look for a lawyer that has at least 5-10 years experience practicing primarily divorce and family law. Find out the lawyer's philosophy regarding litigating cases versus settling them. My personal opinion is that you should want a lawyer who makes it a priority to attempt to acheive a fair settlement for you, but who is capable and willing to litigate the case before a judge.
Posted on February 14, 2007 by J. Benjamin Stevens
Hopefully, this Valentine's Day will be a happy one for you and your spouse. Unfortunately, many people across the country will not be so lucky, because their spouse is being unfaithful and violating their marriage vows.
However, there is good news. Noted private investigator and author, Bill Mitchell, has come up with the following fourteen ways to avoid adultery in your marriage:
Promise your mate you will never join an internet "cheaters" service.
Put any positive thoughts of a "love triangle" in the company shredder
Guard your affection for your spouse or significant other. Don't give it away carelessly.
In 2006 share cards, chocolates, flowers, hotel suites and gifts with just ONE - your spouse.
Tell yourself you will get caught - no matter how selective a gene pool you left.
Understand that not every parent who cheated on their spouse is a wise or a good example to follow.
Convince yourself that car behind you is a private investigator placing a "tail" on you.
Look for reasons to keep your marriage alive - try a defibrillator if necessary.
Communicate to save your marriage. Be open and honest with your partner about your needs, desires and aspirations.
Be affectionate, accountable, understanding and honest this year ( of course with your spouse). Try signing up for a marriage seminar or retreat. Check with a local church for events in your area.
Read this aloud; "Affairs seem exciting and fulfilling for a moment but destructive to me, my family, friends, employer and future. It's not worth it and I'm too smart for that troubled way of living!"
Extramarital affairs are just too costly even for the wealthy. Do everyone around you a big favor, including your kids, use just one bed - the one at home - with your spouse.
Value your health. You can't risk the future over a fling. Cheaters often spread STD's.
Agree that a little "self-indulgence" will lead to an affair so listen to your conscience before it leads anywhere.
In most divorces, children are usually the last to find out that their parents are separating. When they do find out, children have a variety of reactions, from feelings of abandonment to psychological dysregulation to immense anger.
Here are some tips on how to help children maintain their self-esteem and emotional equilibrium during the roughest of times:
Keep an eye out for changes in your child's emotions and these signs of depression:
Loss of spontaneity.
Excessive brooding.
Dramatic drop in grades.
Use of alcohol or drugs.
Loss of interest in his/her favorite activities.
Avoid confrontation and conflict in the children's presence at all costs.
Try to be flexible and think of the children's needs before your own.
This is an extremely turbulent and emotional time. As such, you may find yourself thinking and doing things that you would not normally do. The most devoted of parents have been known to put their children in the middle. Often times you will hear somebody say, "I just don't know this person anymore" about somebody in the process of a divorce. They are right. Most people do go through some sort of metamorphosis during their divorce. We tend to be much more emotional and rash in our decision-making. It's part of the process that we must watch very carefully. Try to always think before you act. What will be the effect of today's action tomorrow?
This is a list of things that under normal circumstances most people would never do. This list was developed based on personal experiences, having had these things done to us, or as much as we may hate to admit it, having done some of these ourselves. If you can follow these guidelines, you will find that you behaved in a mature rational way. Not only can you be proud but also you will find that things will be better in the long run. Easier said than done but give it your best try.
DON'T put your children in the middle of your divorce. The divorce is between you and your spouse. The children are innocent victims. DO show them the love and attention they deserve. Make sure that they know they are not the reason for the divorce.
DON'T stop the children from seeing your (ex)spouse during their scheduled visitation time because he/she owes you money. DO try to resolve the matter with your (ex)spouse. If the two of you can't resolve the problem then contact your attorney to find out what legal actions you can take.
DON'T put your spouse down in front of the children. DO show respect towards your spouse in front of the children. If you can't do that then do not say anything at all. It will only come back to haunt you as well as send the wrong message to the children.
DON'T use your children as a negotiating ploy during the settlement process. DO be honest and up front. Judges know when the children are being used and do not look highly upon such tactics.
DON'T spend $1,000 on attorney fees fighting over a $150 piece of furniture. DO use good business sense when deciding what to fight for and at what cost should you fight for it.
DON'T get greedy. It doesn't matter if you wanted the divorce or your spouse did. Just because you're hurt and your emotions are running high, does not mean that you are entitled to more than the law allows. This attitude will cost you unnecessary attorney fees and the judicial system doesn't care about your personal feelings. DO be reasonable and flexible. Find out from your attorney what you are entitled to by state law regarding equitable distribution, alimony and child support.
DON'T use your children as a therapist. They are not equipped to handle the emotional strain being placed on them. DO get professional help if you need it to cope with your divorce.
DON'T represent yourself. Not only will your inexperience bite you in the butt, you may also appear selfish and self serving. Besides, Judges do not like it when you represent yourself. Even experienced attorneys that are getting divorced use attorneys. DO use an experienced matrimonial attorney. Although you may feel like you will save money, it will cost you more in the long run by not having the proper representation and someone with experience and knowledge of the law looking out for your best interest.
DON'T let your friends tell you what to do. Though they mean well they are not experienced in the coming and goings of a matrimonial courtroom. DO listen to your attorney, he/she knows more than your friends.
DON'T depend upon your memory. DO document everything that you might think will be important later on. Also keep a journal of important dates and events.
DON'T pay your child support late. DO pay it on time. Not only will you avoid legal ramifications, you are also supporting your children. The money goes towards the rent/mortgage, food, clothes, utilities and other necessities.
DON'T call your visitation with your children "Your time" and base things around your schedule. DO remember that the children have a social life too. They have soccer, birthday parties and friends. It is important that their social life be as normal as possible. They are not the ones who are divorcing, you are. So let them maintain a normal social calendar.
DON'T let the children guess when they are supposed to be with you. DO keep a calendar for the children as to the regular visitation and special visitation such as holidays and vacations.
DON'T pick up your children for visitation if have been drinking or have been doing drugs. DO arrange with your (ex)spouse for another time that you can spend with the children.
DON'T make your children feel like a "guest" in your new home. DO make the children feel that your new home is also their home. That should include whatever chores they were responsible for at your prior home they should also be responsible for at your new home.
DON'T let the children play one parent against the other. DO talk to your (ex)spouse when you feel this happening and make sure that the two of you are on the same page.
DON'T question the children regarding the activities of your (ex)spouse. DO keep the children out of the line of fire between you and your (ex)spouse.
DON'T use the children as messengers. This puts them right in the middle. Not only are you risking their love and affection you are also relying upon the child to get the message to your spouse correctly and in the manner you meant it. DO speak directly to your (ex)spouse. This way there is no miscommunication or confusion. If there is a restraining order in place that forbids contact then ask your attorney how you should proceed.
DON'T make promises to the children that you can not keep, especially extravagant ones. DO make sure your promises are realistic, appropriate and that you are capable of carrying out the promise.
DON'T rehash the things that have happened in the past, you can't change what has already ready happened. DO learn from those things, fix what you can and then let them go.
It sounds almost too good to be true -- the "do-it-yourself" divorce. Why would you want to have to deal with lawyers or spend thousands of dollars on attorney's fees if you don't have to? In South Carolina, as in most (if not all) other states, parties are allowed to represent themselves in Family Court for any case, including divorces.
When I am asked this question, I typically respond with this analogy. When you are sick, you can go to the pharmacy and try to get some over-the-counter medicine to treat yourself or you can go to a doctor. Sometimes, you only have something minor, like a cold, and treating yourself might work alright. However, other times, the symptoms that you think are nothing could be a sign of something more serious. Even worse, failing to seek medical treatment promptly might result in more serious consequences later.
Attorneys charge fees for their expertise in their areas of practice. They know which cases are serious and which are simpler. They can advise you of what course of action is right for your specific fact situation. One of the things that I enjoy about Family Court cases is that almost every single case is different due to the people and facts involved. You simply cannot get that from a "kit".
I have seen far too many cases where people tried to handle their case without an attorney, only to cause greater problems for themselves. For instance, what if certain assets (such as retirement accounts) are not addressed in the Divorce Decree? What if the order doesn't require the other person to refinance the mortgage on the former marital residence? These problems can have long lasting effects, which may not be able to be corrected at a later date when they are discovered.
If you want to read more about what can happen in "do-it-yourself" divorces, you should read the article, "Do-It-Yourself Divorce Doesn't Always Sever Ties" by Jessica Garrison, published earlier this week in the Los Angeles Times, or the United Press International article, "Calif. Couples Stumped by Divorce Process" published yesterday. That article explains that sometimes those cases result in people actually not being divorced, only to later learn that they are committing bigamy. In South Carolina, bigamy is still a crime, specifically it is a felony.
The bottom line is that you shouldn't put yourself in that situation. If you want to get a divorce, you should always consult a qualified attorney. You can almost always find an attorney that fits within your budget, and any attorney is generally better than no attorney. However, you typically get what you pay for, and you will probably get better service and better results from a quality family law attorney.
Posted on December 18, 2006 by J. Benjamin Stevens
Holidays can be a particularly tough time for families going through divorce. The images of traditional, "perfect" families can be difficult when your family is going through such a difficult time. Hopefully, for people facing such challenges, these tips from YourHub.com will help ease such trauma during this holiday season:
Recognize you are not alone. In the United States, 52% of first marriages and 62% of second marriage end in divorce. The greeting card images of warmth and loving families are not the reality for many, many families. You are not alone if you or someone you love is in the middle of a divorce or just finalized a divorce.
Acknowledge that you need to take care of yourself. You are preoccupied, forgetful, clumsy and accident prone. You need to create a health promoting environment around you, and do what you need to relax. Take a walk alone, go to movies, get a massage, or take a fitness class.
Stay in the present. This is not the year to dwell on holidays past or worry over holidays future. The past is especially non-productive. Whether the holidays with your "ex" were wonderful or terrible, you will not find it helpful to mull them over right now. Now is the time to make new traditions for yourself and your family.
Choose to be a survivor. With any trauma, such as divorce, you have a choice between being a survivor or a victim. The challenge of divorce can actually make you stronger, if you choose survival. To be a survivor, you must stop processing and reprocessing the same old stuff. We know it is not easy to stop digging through the remains of your feelings, but you need to
Put the legal and financial side of the divorce "on hold" until January, unless you have a hearing this month. Be careful not to make decisions or large expenditures while under the influence of the holidays.
Be the adult parent for your children. Every parenting exchange is likely to be somewhat more emotionally charged as the holidays approach. The parental divorce involves a deliberate decision to keep the trauma away from your children. Remember that the goal is for the children to remember the holidays as a time of joy. You don't want the children to remember their folks always fought for the holidays.
The spousal divorce gets tricky this time of year. Feelings are escalated. You may want to exchange holiday greetings with your extended "ex" family. If you have a relationship with a former sister-in-law, call her but don't discuss the divorce. Don't be shocked if some of your "ex-in-laws" treat you as an "ex human being," though, and don't assume that the discomfort of this Christmas will plague all future Christmases.
Celebrate your mood swings. You might as well simply acknowledge that you will have mood swings, and treat the ups and downs as a normal component of the divorce process. Try to avoid exaggerating the mood swings with excessive use of alcohol, however, as the reality is that alcohol acts as a depressant, and clouds your judgment. (See, your high school health teacher was right.)
Plan what you will do with the rest of your life. This time of year presents wonderful opportunities for reflection. You are now free to guide your own destiny, based on what is meaningful to you. Think about the things you always wanted to do, but never made room for. The divorce process, painful as it can be, also is a liberation to make plans that suit your interests, needs and personality. Do you have a vocation you have never developed? Think of moving, regenerating, reenergizing, gaining both health and perspective. Plan to participate in a charity project, to help yourself by helping others.
Have Fun. Think of what makes you smile...get away from the intensity. Give yourself some space to actually celebrate and have a good time with friends and family. You are not betraying your sorrow at saying good-bye to a failed marriage if you actually have some fun.
As you are most likely aware, Massachusetts legalized "gay marriage" in 2004, and Vermont and Connecticut have since authorized "civil unions" that extend marriage-like rights to same-sex couples. Ever since then, legal experts have begun debating what would happen when those couples chose to terminate those relationships, as CNN has reported.
This issue has been addressed by a handful of state appellate courts, who have reached different conclusions thus far:
The Iowa Supreme Court dismissed a case involving the dissolution of a Vermont civil union by holding that the various groups and other individuals challenging the ruling lacked standing to bring the appeal. (Alons v. Iowa District Court)
The Virginia Court of Appeals has ruled that despite of the its "Marriage Affirmation Act", Virginia mustgive full faith and credit under the Parental Kidnapping Prevention Act ("PKPA") to a custody determination made by a Vermont court growing out of a Vermont civil union. The opinion states that the federal "Defense of Marriage of Act" (DOMA) does not create an exception to the PKPA and that both statutes must be given effect. The opinion includes no discussion about the relationship between Virginia's Marriage Affirmation Act and Virginia's version of the UCCJEA. (Miller-Jenkins v. Miller-Jenkins)
A hearing is scheduled this week in Rhode Island to address whether a Rhode Island same-sex couple married in Massachusetts may divorce. Rhode Island state law neither expressly recognizes or prohibits same-sex marriages.
A recent article points out that divorce among older Americans (those in their 50's through their 80's) is increasingly common, a trend which is being called "gray divorce." The U.S. Census found that the divorce rate among Americans older than 65 grew from 6.7 percent in March of 2000 to 8 percent just four years later. Several factors are believed to contribute toward this trend, including incompatibility during retirement, greater independence of women, and increased life expectancy.
AARP The Magazine conducted a study, "The Divorce Experience: A Study of Divorce at Midlife and Beyond," in May of 2004, which surveyed 1,147 men and women, ages 40 to 79, who divorced in their 40s, 50s or 60s. The results of this study found that women cited alcohol and drug abuse, physical or emotional abuse, and infidelity as the main reasons for divorcing. In that same study, men listed falling out of love and different lifestyles or values as their primary reasons.
In the past, unhappy spouses were more likely to have suffered in silence. However, professionals believe that the Baby Boomer generation's tradition of self-expression may be contributing to the breakup rate in that age group and also influencing the generation above. Women also have greater economic independence and security today than in years past, which gives them greater ability to get out of unhappy marriages.
Interestingly, the AARP report found that "Compared to other losses that may occur at midlife or older, people age 40 and older generally feel that divorce is more emotionally devastating than losing a job, about equal to experiencing a major illness, and somewhat less devastating than a spouse's death." There are many resources available to help spouses cope with the loss of their marriage, including support groups, seminars, and various books on this subject.
Source: "Divorce on Rise for Older People" by Ronni Gordon, published in The Republican (Springfield, MA). Thanks to Jeffrey Lalloway of the California Divorce and Family Law blog for his post last week about this article.
Posted on November 17, 2006 by J. Benjamin Stevens
A recent article in The Syracuse Post-Standard reported that the following books can help kids deal with issues and emotions surrounding divorce. The fiction titles include characters coping with similar circumstances that occur when parents divorce.
"The Divorce Express," by Paula Danziger. Phoebe spends much of her time riding a bus between her divorced parents' houses. She tries to fit in each place while figuring out who she really is. Ages 11 and older.
"Southpaw," by Rich Wallace. Jimmy moves to a new town when his parents divorce. He then has to deal with an ultra-competitive dad when he joins the baseball team. Ages 8 and older.
If you (or someone you know) are living with your former spouse or considering doing so, you should read Lee's excellent article and consider the points he raises.
Source: "Living Together After Divorce" by Lee Borden.
As you may have heard by now, Paul McCartney and his wife, Heather Mills McCartney, are going through an increasingly nasty divorce. Through it all, the former Beatle has stated his intent to conduct himself with "a certain dignity."
Some wisdom from Sir Paul that every party in a divorce could learn a lot from:
"There are certain things in life that are personal, and I think a relationship with a partner is intensely personal, and I prefer to keep it that way."
"When you are going through difficulties, I think the thing to do for the sake of all the people all concerned is to keep a certain dignity and remember that it is a private affair, and that way, you will probably get through it better."
"Life goes on. I do not hold grudges against anyone."
"I think life goes on, and it is what you make of it..."
You are probably not surprised to hear that divorcing parents often do things that negatively affect their children. Use the children to manipulate or control their spouse? Sure. Put the children directly in the middle of a nasty, contested case instead of trying to shield them? Unfortunately yes.
What if there were programs to educate parents and help them become cooperative ex-spouses? Fortunately, there are many such programs located across our state and across the country. One such program in the Upstate is the "Children in the Middle" (CIM) program offered by The Phoenix Center in Greenville, SC.
The CIM program, formerly known as PACT (Parent and Child Transition), is a four week program that addresses how the divorce experience relates to parenting. Through small group sessions, this program allows both custodial and non-custodial parents a chance to consider different points of view. You can click HERE to view a *.pdf description of this program, including its statistical success rate.
The Chicago Sun-Times reports that an investment banker will receive $9.7 million after his ex-wife destroyed his career and reputation with a damaging letter sent to 200 people, including potential employees, colleagues, charities and friends.
The letters alleged that he boasted of bribing judges, made plans to have her killed, and duped his employers out of money with a lucrative investment scam. It also detailed allegations from the couple's divorce.
The woman's letter sent the banker's career "into a nose-dive" when he found himself demoted (from his $1.5 million a year position) and later, struggling to find a job at all. The man claims to this day that he cannot explain why his ex-wife distributed the letter.
The ex-wife's attorney argued in his closing statements that she had endured "emotional torture" in the marriage and that sending the letters "was the only way to protect" herself from her ex-husband's threats. The ex-husband has maintained that he had no contact with her since they divorced.
You can get more information about this story by clicking HERE.
Posted on September 28, 2006 by J. Benjamin Stevens
If you are interested in the growing trend of divorce mediation as opposed to traditional litigation, you should read "Mediate or Litigate: Which is Best for Your Divorce Client". This article was written by Maria Imbalazano of Stark and Stark in Princeton, NJ for the August 2006 New Jersey Law Journal Family Law Supplement. You can download this article by clicking HERE.
I am pleased to present the following post from my law partner, Paul MacPhail:
One question that is frequently asked by our clients is “If I die before I’m divorced, will my spouse get anything from my estate?” Let's take a look...
Consider this example. The wife filed for divorce in June and the divorce was granted on September 27, 1996. The husband died on October 7, 1996, prior to the divorce order being signed and filed with the Clerk’s Office on October 11, 1996. The South Carolina Court of Appeals addressed this situation in Hatchell v. Freeman, and it held that the wife was still the husband’s spouse for the purposes of inheriting from his estate. As a result, the wife was able to make a claim against the estate of the husband for her intestate share, which, if there were no surviving children, would be 100 percent!
What happens in other scenarios? Subject to some exceptions, the following would apply:
In the above situation, if the husband died after the filing of the divorce decree, the wife would no longer have been a surviving spouse, and she would not have had any right to inherit from his estate, even if named in his will. See S.C. Code Section 62-2-507 (revocation of disposition by divorce or order terminating property rights) and S.C. Code Section 62-2-802 (effect of final orders: Divorce Decree or Decree of Separate Maintenance).
What if divorcing party makes a new will during the divorce disinheriting spouse and then dies before the divorce decree (or decree of separate maintenance) is filed in the clerk’s office? The surviving spouse would be entitled to an elective share of one-third of spouse’s estate. See S.C. Code Section 62-2-201 (elective share statute).
What if the deceased spouse’s will pre-dates the marriage and doesn’t mention his/her spouse? Here, the surviving spouse would receive 100% of the estate if there are no children of the deceased spouse, or 50% if there are children. See S.C. Code Section 62-2-301 (omitted spouse provision).
Are there ways to avoid the consequences of these laws? Yes, there are steps that you can take to protect your heirs and avoid enriching your estranged spouse. You should consult with your family lawyer and/or estate planning attorney to find out the steps you can take in your particular case.
Disclaimer: The above summaries of law are subject to exceptions. Your particular situation may involve facts that would allow for a different result. Consult with an attorney for advice.
By now, you have probably heard the story of the doctor in New York who blew up his $9 million dollar upper East Side home to avoid losing it in a divorce settlement. If you want to read about this sad situation, you can read the New York Daily News article, "Marriage, Home Go Up in Fames," for more information.
Even here in South Carolina, I had a client years ago whose husband blew up her automobile less than ten feet from where she was sleeping — while it was parked in the carport at their adult daughter's home. Fortunately, my client and her daughter were unharmed and the house was repaired, but the car obviously didn't make it.
ABC News 'Primetime' recently published an in depth look at the extraordinarily nasty — even deadly — things people do in divorces to those they once loved. This article, "Divorce Wars: When Love Turns Nasty," provides insight into this growing trend.
Question: How old do you think a child should be before you tell him the specifics of your divorce? My son is 10 and has been asking me why his dad and I broke up. It was because his father left me for his current wife of two years, and I'm thinking now that my son is older he should probably know the truth before he gets any closer to that woman his father married. What do you think?
Answer: OK, we understand the desire to be vindicated. Your ex left you for another and that's not playing fair, but you have to ask yourself when considering passing on information like this, "How will knowing this help my son? Will it make him stand a little taller and feel more secure? Will it improve his quality of life?" We doubt it. Plus, your ex has been married to the other woman for two years and you haven't sheltered your son from her so far, so he has probably already built some sort of rapport with her. Offering this type of information now would undermine not only the relationship he has built with her, but also his relationship with his father. We can't see how sharing this information with him at this point in his life will improve your son's quality of life, so we vote no on telling him for now.
What about when he becomes an adult, is that a good time to tell him? Our answer would still be the same. If the information isn't pertinent to making his life better, the information need not be volunteered. We aren't saying lie to him. The fact is, the truth has a funny way of coming to the forefront even if we don't push. As a result, you may be confronted by your son asking you for the real story without your needing to volunteer the information. He might be told by an aunt or an uncle, or even a friend who knows the whole story. With this in mind, no matter how difficult it may be, it's best to talk to your ex now and agree about how both of you will present the truth if asked. Don't add insult to injury by lying or tell your son two different stories. Be prepared just in case it happens and get on the same page.
For the record, we would like to say, "Bravo!" We know only what you have told us, but we certainly acknowledge that it's tough to stay quiet with information like this, especially if you have been wronged. The fact that you have has obviously been for the sake of your child. That's a sign that you are putting him first, and that's always the best thing you can do.
Ever wonder what happens to the family pets when couples divorce? If so, consider the following article from the Florida Divorce Law Blog:
In most states, pets are viewed legally as property, to be equitably distributed in a divorce. In practice, pets typically follow the children in a divorce. But what about when the pets are the children, the only children? Childless couples can be as attached to their “pet children” as couples with human children are to their children.
The law’s very different current view of pets can be powerful incentive to settle pet “custody” by mutual agreement, rather than incur the displeasure of a judge. But change may be in the wind. More and more divorcing couples do see what happens to the family pets as a custody / visitation issue. And the Animal Legal Defense Fund is lending support to their cause.
In an 18 page friend of the court legal brief, the Fund makes it clear that pets do have preferences as to caretakers and the best interests of the pet deserve consideration. And animal law, including animal rights law, is gaining recognition as a distinct branch of the law. It’s likely only a matter of time before custody law catches up to pet owners’ (or pet parents’) perceptions.
Promise your mate you will never join an internet "cheaters" service.
Put any positive thoughts of a "love triangle" in the company shredder.
Guard your affection for your spouse or significant other. Don't give it away carelessly.
In 2006 share cards, chocolates, flowers, hotel suites and gifts with just ONE - your spouse.
Tell yourself you will get caught - no matter how selective a gene pool you left.
Understand that not every parent who cheated on their spouse is a wise or a good example to follow.
Convince yourself that car behind you is a private investigator placing a "tail" on you.
Look for reasons to keep your marriage alive - try a defibrillator if necessary.
Communicate to save your marriage. Be open and honest with your partner about your needs, desires and aspirations.
Be affectionate, accountable, understanding and honest this year ( of course with your spouse). Try signing up for a marriage seminar or retreat. Check with a local church for events in your area.
Read this aloud "Affairs seem exciting and fulfilling for a moment but destructive to me, my family, friends, employer and future. It's not worth it and I'm too smart for that troubled way of living!"
Extramarital affairs are just too costly even for the wealthy. Do everyone around you a big favor, including your kids, use just one bed - the one at home - with your spouse.
Value your health. You can't risk the future over a fling. Cheaters often spread STD's.
Agree that a little "self-indulgence" will lead to an affair - so listen to your conscience before it leads anywhere.
I recently became aware of a great new blog, The Online Lawyer, which has practical, useful posts on topics from family law to bankruptcy. The blog is published by M. Travis Robbins, an attorney in Tallahassee, Florida. The following article, Divorce: Things To Consider, was published a few weeks ago:
I once heard an acquaintance say that the happiest day of his life was the day he got married and the second happiest was the day he got divorced. From that statement I think it is safe to assume that his ex-wife would probably put the two in reverse order. Although my wife and I have been happily married for eleven years I am not so blind as to think all marriages work out. Sometimes there is just no reconciling marital differences. If you have decided to get divorced consider the following:
Consider Mediation First
As a general rule, the more the parties can work out themselves the happier each will be with the end result. Consider mediation. Mediation is an opportunity for each party to appear before a neutral third party to discuss issues such as alimony, child support, child custody, asset division, etc. Divorce mediators are skilled in drafting divorce agreements addressing each of these issues. If the parties are able to reach an agreement at mediation the agreement may be submitted to a family law judge for approval. In many cases, a hearing may not even be necessary for a judge to grant a divorce pursuant to a mediated divorce agreement.
All statements made during mediation are confidential and cannot be submitted before the court. Also, if the parties are unable to reach an agreement at mediation they do not have to sign the agreement. A word of caution: If your spouse appears at the mediation with an attorney and you do not have an attorney, terminate the mediation until you counsel with a divorce attorney. I know numerous individuals who tried to avoid paying attorney's fees by negotiating with the other party's attorney. I have never seen a case where the unrepresented party came out ahead (or break even for that matter).
Custody and Visitation of Children
If the parties cannot agree on legal custody of the children, a court will determine who gets custody. The primary consideration in determining custody is what is in "the best interest of the children." Many states have different criteria for determining such interest. Consult a local divorce attorney in your area to find out what factors your state uses.
The spouse who is granted "legal custody" has the right to make decisions about a child's upbringing including the children's schooling, religion, medical care, etc. The parent who is granted "physical custody" has the right to have the child live with that parent. Often "legal" and "physical" custody are shared; but more often than not shared custody is the result of a mediated divorce agreement. The noncustodial parent is usually allowed reasonable visitation rights. The parents are usually left to work out their own schedule of time and place for visitation which allows the parents flexibility in determining the schedule.
Child Support
Most states have legislated guidelines for determining child support based on the income and expenses of each parent. In determining child support, most states require the court to look at the needs of the child (i.e. health insurance, education, day care, and special needs), the income and needs of the custodial parent, the paying parent's ability to pay, and the child's standard of living before divorce or separation. Most states require each parent to fill out a financial statement before a court can make a decision.
Alimony
Alimony (a/k/a spousal support) means payment by one spouse to another following a divorce. Alimony is usually granted when the marriage was of a long duration and one spouse earns considerably more than the other. Alimony is also usually granted when one spouse has left the workforce to raise the children or manage the household. Make sure you keep adequate records if you are paying or receiving alimony.
Getting divorced is one of the most stressful times in a person's life. Emotional issues such as custodial time with the children and who is at fault become inextricably bound with the financial issues of support and equitable distribution. There are many choices to be made at a time when perhaps you can't even think straight. One of those choices is whether to start legal proceedings in court and advance through litigation or try to settle the issues through mediation.
Divorce mediation is a process whereby the husband and wife attempt to reach a resolution of the issues involved in their case (outside of an adversarial process) with the help of a neutral third party. Many times the mediator is an attorney but his/her role is not to give legal advice but to facilitate discussions and explore options with the parties. It is the parties who come to an agreement. The mediator is not a judge and is not there to enter into the dispute or take sides. The mediator's role is the manage the conflict and maintain the process.
The first step in any mediation is to identify the issues. Most issues involved in a divorce case are financial such as child support, alimony, and equitable distribution of assets and debts. However, custody may also be an issue ripe for mediation. The parties must decide parenting time arrangements not only on a daily basis, but must also deal with holidays, vacations, education and medical issues.
In order to successfully mediate a divorce case, both parties must participate on a level playing field. Information is key to solving problems and if one party has most of the information, he/she must share that information fully and truthfully. Several sessions of a mediation may be used to gather financial information such as the value of each and every asset and debt as well as the incomes and future expenses of both parties. This information is shared and each issue is explored thoroughly with both parties offering suggestions on how best to resolve that issues. The mediator may also suggest options or alternatives for the parties' consideration.
Each party should consult with an attorney during the mediation process to become familiar with the law and how it applies to their case. Since the mediator does not give legal advice, it is imperative for the parties to seek that advice before entering into any agreement. It is far better to obtain that advice early on, then after the process is finalized.
When all of the issues have been resolved between the parties, the mediator drafts a Memorandum of Understanding which sets forth the parties' agreements. This document is not signed. Each party should then take it to their attorney to be reviewed and transformed into a Property Settlement Agreement.
There are several benefits to mediation as opposed to litigation. It is a non-adversarial process. The parties want to solve their problems and maintain their relationship, most often because of the children. Litigation tends to pit the parties, one against he other, with each digging in their heels and fighting to the death. Mediation is a gentler process. Further, it is private. Outside intervention is basically limited to the mediator although experts may be consulted to give advice. The mediation process will, in all likelihood, be less expensive than litigating the case and the process is faster because it is done on the parties' time line, not the court's.
Mediation is not right for everyone. It works best for those who recognize they have a dispute, agree on the need to resolve it, and want to actively participate in the process designed to settle their dispute.
"Divorce and Dissipation: Hidden Assets and Spending" by Suzanne Griffiths, published in Colorado Biz, contains an excellent discussion on the topic of dissipation. She states, "marital asset dissipation occurs when one spouse has previously consumed, given away or otherwise transferred, mismanaged, converted, or otherwise adversely affected property that, had it been before the court, would have been subject to equitable distribution. This commonly takes the form of spending marital funds for the benefit of paramours or wasting marital property."
This article points out that when making a dissipation claim, a spouse needs only to prove that the expenditure was made at or during the time of the marriage breakdown or was spent for a non-marital purpose, (such as significant gifts, hotel rooms, air tickets etc for a mistress,) during the marriage. Once this has been established, it is the burden of the other spouse to prove the funds were spent on a legitimate purpose. If the court finds that dissipation has occurred, it will appropriately adjust its division of property to offset the dissipation.
Ms. Griffiths recommends considering the following points in analyzing a potential claim for marital asset dissipation:
Your attorney should be your first resource in making a dissipation claim. Through interrogatories, requests for production of documents, financial releases and depositions, she or he can trace just about any of your spouse's expenditures during the time of the marriage and can use documents turned up to file a dissipation claim.
By the same token, be aware that any expenditure you make -- be it with credit cards, checking accounts, cash withdrawals or rewards and mileage accounts -- are subject to review by your spouses' attorney through the normal course of divorce proceedings and can be used against you in a dissipation claim.
It's not size that matters: The fact that you or your spouse dissipated items of little monetary value will not stop the court from adjusting its allocation of resources, although you personally might determine that the costs of pursuing the dissipation claim exceeds the benefits of having it remedied.
Ease up on the vice: Excessive expenditures on gambling, drinking, or indiscriminate spending are considered grounds for a marital asset dissipation claim. In addition bad behavior that is seen as economic fault can significantly influence the judge's discretion in making an equitable division of marital assets.
Trim down the transfers: If you or your spouse transfer assets to a family member, lover, or third party, one of you may be allocated another asset to make up for the loss caused by the transfer.
Play down the paramour: Spending marital property on gifts for a significant other is a prime example of asset dissipation and very likely to result in a court-ordered adjustment of property division. It also infuriates the spouse who discovers the dissipation, and may substantially reduce any prospect of reaching an amicable settlement out of court.
Business is business: Business expenses, are not usually considered dissipation when they are within the range of day-to-day operations and comparable salaries.
Your word is your bond: If you or your spouse agreed to an expenditure during or after the breakdown of the marriage then there are no grounds for a claim of asset dissipation.
Hobbling hobbies: Expenditures on recreational activities or hobbies that both parties enjoyed, or approved of, during the marriage are not usually considered examples of dissipation.
Assessing the damage: The court values dissipated marital assets as at the date that they were dissipated. This is particularly important as it pertains to investment or retirement accounts, as if one spouse cashes out, the court will value the investments based upon on the date they were sold, not based upon what they might have turned into had they remained invested.
COUPLES LEARN DIVORCE ISN'T FINAL UNTIL DECREE IS FILED
DEAR ABBY: After reading the letter from "Married? In Arkansas," who found to her dismay that her husband was still married to his first wife, I thought I should write. It happens more than people would like to think.
I have worked for more than 10 years on a divorce court staff, and I would advise all divorced people -- male and female -- to request a certified copy of their divorce decree. This official document is available from the courthouse in which they were divorced.
I know of at least two instances where the lawyers failed to submit the decree of divorce to the judge. It was only discovered more than a decade later. In the first instance, as part of the property settlement, the husband was going to buy out his ex-wife's interest in the former marital home. The provision was triggered by the youngest child turning 18. The mortgage company needed a copy of the divorce decree to refinance the mortgage. Surprise -- both the husband and wife had remarried! They had to go through another divorce proceeding. (It was probably more amicable than the first.) But they were humiliated, not to mention furious at the attorney. Then they had to "remarry" their current spouses.
The second incident was very sad. The parties' son was killed in an accident. In the process of filing a wrongful death action, a copy of their divorce decree was needed. That's when they learned their case had been dismissed for "failure to prosecute." Again, the attorney had not filed the judgment, even though the parties had appeared in court and testified.
Please, Abby, tell your readers if they have gotten a divorce and do not have a certified copy of their divorce decree, to get one now. Most attorneys are hard-working and honest. But it never hurts to have insurance, and this is some of the cheapest insurance they'll ever get. -- CONCERNED COURT REPORTER
DEAR CONCERNED: I'm sure your letter will raise some eyebrows, but you have offered some good advice, and I hope my readers will pay attention to it.
If one spouse in a divorce case wants to have the other spouse tested for drugs, they can file a motion and the Judge will decide whether to grant the request. Generally speaking, if custody or visitation is an issue, and there is some reason for suspecting abuse, the Judge will grant the request and require the drug test.
One warning that I give all my clients is that if they request a drug test, assume that the other side will also request one of them and that the Judge will order both parties to be tested. Too frequently I have had my own clients tell me they wanted their spouse tested and that they didn't mind taking a drug test themselves because there was no way the wouldn't pass it. Then inexplicably (the client is always shocked) their spouse passes and they fail.
Do not put yourself (and your lawyer) in that position. In our jurisdiction the Courts are requiring hair follicle tests which purportedly are more accurate and test back farther in time. Whether that is true or not, you don't want to test positive for drugs on the drug screen that you demanded be taken! Of course, the best advice here (particularly if custody of children is at issue) is that if you are using drugs, you don't need to have custody of your children. Or, the converse, if you want custody of your children, do not be using drugs.
It took co-authors Alison Clarke-Stewart and Cornelia Brentano a couple of years to synthesize hundreds, if not thousands, of studies and surveys on divorce for their book "Divorce: Causes and Consequences." The Orange County professors were assigned the chore by Yale University Press.
Clarke-Stewart, a professor of psychology and social behavior at UC Irvine, and Brentano, an associate professor of psychology at Chapman University, had taught a class on divorce at UCI for years and found themselves searching for a textbook that looked comprehensively at the research on divorce. They hope "Divorce: Causes and Consequences" will dispel myths about divorce and educate couples considering or undergoing a divorce, and those who work with divorcing couples.
"There really is a lot of fire out there in the debate about whether divorce is good or bad," Clarke-Stewart says. "What this book says is, it's good and bad. We hope people will take away this kind of balanced view." "Divorce: Causes and Consequences" includes first-person insights from their students about their parents' divorce. Clarke-Stewart and Brentano found those accounts so powerful that they self-published another book, "Divorce Lessons: Real-Life Stories and What You Can Learn from Them" as an easy-to-read, self-help book.
Q. Do you think most people would be surprised to know that the divorce rate has been going down and is actually the lowest it's been in 30 years?
Brentano: Probably the most common myth is that the divorce rate is ever increasing. That is sparked by the media. I just did a quick search for something on divorce, and instantly I get a slew of hits that point out the 'ever-increasing divorce rate.'
Clarke-Stewart: I guess you'd have to ask what interested group would want to say it's getting better? It serves everybody's purpose to make it worse.
Brentano: There are many divorce-reform organizations out there, grass-roots organizations who uniformly use this notion that the divorce rate is staggering.
Q. In the book you say that people should enter divorce with realistic expectations and reasonable demands. How do you do that at a time when emotions tend to run high?
Clarke-Stewart: I always tell my students in the last lecture of the class that they should only marry someone they think they could go through a divorce with. You really have to be good friends with the person. But I do think that information and education have gotto be helpful.
Brentano: There's evidence for that in the research. Both marriage education and divorce education promote better marriages, more stable marriages.
Clarke-Stewart: So the thing is, think about and find out the ways to make divorce the least destructive for the child instead of sweeping it under the couch. That was one of the surprising things in the literature and also in our conversations with the students taking our class, that parents don't seem to realize how much their children are suffering.
Q. Can you talk about the different ways that men and women suffer from divorce?
Clarke-Stewart: It's interesting that men seem to have the most extreme emotional reactions. For one thing, they are less likely to be the person who initiates the divorce. They're happy to go along year after year with things being, you know, just OK. They're the ones that are more likely to have the "nervous breakdown," or suicide attempt, or car accident, whatever. But they get over the reaction sooner, on average. Whereas for women, they may be more likely to feel some sense of relief at the beginning, but then when the reality of having more limited income and probably more sole parenting, child-care responsibility sets in, then it becomes very long-term depressing for them. And in terms of money, there is this statistic that women's family income tends to go down and sometimes men's goes up. But in fact both parties end up with less family money than a married couple staying together.
Q. But is it more likely that men will be doing better economically?
Clarke-Stewart: Yes, and they remarry sooner.
Brentano: With men, you often see a fairly quick flurry of dating activity after divorce. Although they may be in a state of crisis, part of their coping mechanism is to find a replacement. Unless they are completely heartbroken. They aren't necessarily looking for the partner for the next marriage. For the former wife, that looks like the man is having a good time.
Q. And the men may not be having a good time?
Clarke-Stewart: No, they're probably not. But they're actively having a bad time.
Q. In your book you said that children say the worst result of divorce is that they miss their father.
Clarke-Stewart: Yes. These people of any age, in the place where you're supposed to have a father, they have a hole. Unless they have a stepfather that has filled in the hole, they will always be yearning and curious and feel rejected by the guy that left them.
Brentano: But it's really important to understand that it's not just any contact or frequent contact with the father regardless of what the quality of contact is. That is a message fathers don't always understand. It's not just about having control over the kids or having contact with the kids. Are you continuing to be a parent and are you evolving as a parent? Kids later on comment on that. They say, yeah we did all these things, or he bought me things, but I never really had a relationship with him. And that hurts, too.
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As I 
Some people are just determined to make divorce as painful and unpleasant as possible. 