Spartanburg Divorce Lawyer & Attorney : Stevens-MacPhail Law Firm : South Carolina Family Law Serving Columbia, Charleston, Greenville, Hilton Head Island

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. 

Source:  "High Tech Devices Leading More Couples to Divorce" published at MyFox Chicago.

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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.

Source:  "Robin Williams Will Have a Respectful Divorce" published at the Stars Journal.

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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.

You can read much more about this situation in "Spartanburg County Council Candidate Denies Affair Claims" by Robert W. Dalton, published in the Spartanburg Herald Journal.

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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.

You can view the video below, and you can also read more about this situation in the Chicago Tribune, London Daily-Mail, CNN, Washington Post, People magazine, and the Los Angeles Times.

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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.
  

Source:  "Parting Ways? Your Guide to a Fair Divorce" published in the Erie Times-News.

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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.

Source:  "Women Lawyers Have Higher Divorce Rates, Need Loving Husbands, Researcher Says" by Debra Cassens Weiss, published in the ABA Journal Weekly Newsletter.

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The following information is from the The Oregon Divorce Blog:

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:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.

Source:  "Top 10 List: Top 10 Things to NOT Do During Your Divorce" by C. Sean Stephens, published at The Oregon Divorce Blog.

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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:

1. No cohabitation for one year;
2. Intent of person that left not to resume cohabitation;
3. Absence of consent by the other person; and
4. 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.

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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.

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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:

1. Being Unprepared
   
2. Not Seeking Financial Advice
3. Asking for the House
4. Rushing to Court
5. 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.

Source:  "Top Five Divorce Mistakes to Avoid" by Stacey L. Bradford of SmartMoney.com, published at AOL Money & Finance.  Thanks to the Kevin Hickey Law Blog for its post about this article.

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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.

Source:  "Talk to a Divorce Lawyer" by Helene Taylor, posted at The Modern Woman's Divorce Guide blog.

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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:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.

Source:  "10 Things To Do If You Are Going To Get Divorced" by C. Sean Stephens, published at The Oregon Divorce Blog.

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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.

Source:  "Social Security Survives Divorce" by Neil Downing, published in the Providence Journal.  Thanks to Jeffrey Lalloway of the California Divorce and Family Law blog for his post on this subject.

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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.

Source:  "Putting An End To Divorce Wars" published at CBSNews.com.  Thanks to Kevin Hickey for his post on his blog about this article.

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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.

Source:  "Preparing for Divorce" by Jeanne M. Hannah, published at her Updates in Michigan Family Law.

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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.

Source:  "Choosing a Divorce Attorney - Flexibility is Key" by Victor J. Medina, published at the
New Jersey Divorce & Family Law blog.

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The following tips can help make your divorce case easier, less stressful, and less expensive:

1. Locate, organize and copy all financial records. Make one copy for yourself and a second for your attorney. Save the originals.
2. Close all joint bank and brokerage accounts. If that’s not possible, freeze access to the accounts.
3. Close all joint credit accounts. Open new accounts in your own name.
4. 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.
5. Establish your net worth. Keep a record of all income during the separation. Save pay stubs, bank and brokerage statements.
6. The forced sale of stock or other investments is likely to have tax implications. Consult your financial planner as needed.
7. Before the settlement conference, make a list of what you seek right down to household goods.
8. 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.
9. Settle out of court. This will cut legal costs and ease your jangled nerves.

Source:  "Making Divorce As Painless As Possible" by Scott Reeves, published at Minyanville.  Thanks also to Jeffrey Lalloway of the California Divorce and Family Law blog for his post on this subject.

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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:

• Alimony/Spousal Support Factors
  
• Custody Criteria
  
• Child Support Guidelines
  
• Grounds for Divorce and Residency Requirements
  
• Property Division
  
• Third-Party Visitation
  
• Appointment Laws in Adoption, Guardianship, and Parentage Cases
  
• Download All Charts

Source: Thanks to John Harding for his article on this subject published at his California Divorce Blawg.

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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.

Source:  "Breaking Up Is Hard To Do Financially" by Kathy Chu, published in USA Today.  Thanks also to the California Family Law Blog and the Georgia Family Law Blog for their posts on this subject.

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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.

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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.

Source:  "How to Hire the Right Divorce Lawyer" published at the DivorceZone Divorce and Family Law Blog.

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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.

Source:  "Divorce Preparation: Step 13 - Be Good" by Michael Sherman, published at his Alabama Family Law Blog.

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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:

1. Identify the issues in your case.
2. Understand how the law affects your case.
3. Know the estimated costs of trial.
4. Remain open to unique opportunities.
5. Keep a few secrets.   
6. Be determined.   
7. Be ready for a little give and take.
8. Be patient.
9. Get it in writing.

You can read much more about each of these steps by clicking here.

Source:  "Settlement Conference Success" by Helene Taylor, published at The Modern Woman's Divorce Guide.

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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:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Source:  "The Devastation of Divorce" by Trish Berg, posted at Inspired Parenting.

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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:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.

Source:  "The Devastation of Divorce" by Trish Berg, posted at Inspired Parenting.

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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.

Source:  "Toll Records Trip Up Philanderers" by Chris Newmarker, published at The Huffington Post.

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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.

Source:  "Step 12 - Consider Hiring a Private Investigator" by Michael Sherman, published at his Alabama Family Law Blog.

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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.

Source:  "Recently Split? Avoid Costly Tax Mistakes" by Jeanne Sahadi, published at CNNMoney.com.

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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...

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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.

Source:  "Divorce Preparation: Step 11 - Keep a diary" by Michael Sherman, published at his Alabama Family Law Blog.

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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.

You can read more about the study published in the July issue of the Journal of Child Psychology and Psychiatry by clicking HERE.

Source:  "Depression in Kids of Divorce Blamed on Genes" by Linda Carroll, published at MSNBC.com.

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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.

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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