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Posted on December 7, 2007 by J. Benjamin Stevens
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.
Source: "10 Things To Do If You Are Going To Get Divorced" by C. Sean Stephens, published at The Oregon Divorce Blog.
Posted on August 10, 2007 by J. Benjamin Stevens
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.
Posted on July 19, 2007 by J. Benjamin Stevens
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.
Posted on March 24, 2006 by J. Benjamin Stevens
Make rules about nonfinancial matters. For practical reasons, you should keep personal agreements out of your prenup. Here is a partial list of nonfinancial matters that sometimes find their way into prenups, but are better dealt with separately. Of course, the possible issues are endless and you may well think of many that aren't mentioned here:
* responsibility for household chores -- from laundry to cleaning to car care
* use of last names after you marry
* agreements about having and raising children, such as birth control, having children, children's names, child care responsibilities, and education
* how you will relate to in-laws or stepchildren, and
* whether you will have any pets and who will be responsible for them.
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Posted on March 17, 2006 by J. Benjamin Stevens
"Encourage" divorce.
At one time, many courts viewed any prenup specifying how things would be divided up in case the couple splits as void and unenforceable because it promoted divorce. The modern approach allows such agreements, but judges in some states still take a hard look at them. If the agreement appears to offer a financial incentive for divorce to one party, it may be set aside.
Copyright © 2006 Nolo
Posted on March 10, 2006 by J. Benjamin Stevens
Give up the right to alimony, in a few states. A handful of states similarly limit your ability to give up your right to alimony -- also called spousal support or separate maintenance -- if there is a divorce. Other states permit such waivers, so you will need to know what your state laws say if you are considering this kind of agreement.(You can find the law for your state in Nolo's book, Prenuptial Agreements: How to Write a Fair & Lasting Contract, by Katherine E. Stoner, Attorney-Mediator and Shae Irving, J.D.)
Copyright © 2006 Nolo
Posted on March 3, 2006 by J. Benjamin Stevens
There are some things you just can't -- or shouldn't -- do with a prenup. State laws differ as to what matters are considered off-limits. However, as a general rule, any agreement to do something that is illegal or against state-defined public policy will be considered unenforceable -- and may even jeopardize other valid aspects of the premarital agreement. Here are some things that you can't do, at least in some states:
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Posted on February 24, 2006 by J. Benjamin Stevens
In addition to the reasons listed so far, there are countless other uses for a prenup, depending on your circumstances. Here are some examples of other matters people include in their prenups:
- whether to file joint or separate income tax returns or to allocate income and tax deductions on separate tax returns
- who will pay the household bills -- and how
- whether to have joint bank accounts and, if so, how you will manage them
- agreements about specific purchases or projects, such as buying a house together or starting up a business
- how you will handle credit card charges -- for instance, whether you will use different cards for different types of purchases, what kinds of records you will keep, and how you will make payments
- agreements to set aside money for savings
- agreements for putting each other through college or professional school
- whether you will provide for a surviving spouse -- for example, in your estate plan or with life insurance coverage, and
- how to settle any future disagreements -- for example, you might agree to hire either a mediator or a private arbitrator.
Copyright © 2006 Nolo
Posted on January 18, 2006 by J. Benjamin Stevens
Prenuptial agreements are most often used for the following puposes, this week, the first reason:
Keep finances separate. Every state has laws designating certain kinds of assets accumulated during marriage as marital property or community property, even if these assets are held in the name of just one spouse. If a couple divorces, or when one spouse dies, the marital or community property will be divided between them, either by agreement or by a court. If you want to avoid having some or all of your individual accumulations during marriage divided up by a court, you can do so with a premarital agreement.
Copyright © 2006 Nolo
Posted on January 11, 2006 by J. Benjamin Stevens
A doctrine that grants the spouse least at fault a divorce when both spouses have shown grounds for divorce. It is a response to an old common-law rule that prevented a divorce when both spouses were at fault.
Copyright © 2006 Nolo
Posted on December 30, 2005 by J. Benjamin Stevens
The act of freeing someone from restraint or bondage. For example, on January 1, 1863, slaves in the confederate states were declared free by an executive order of President Lincoln, known as the "Emancipation Proclamation." After the Civil War, this emancipation was extended to the entire country and made law by the ratification of the thirteenth amendment to the Constitution. Nowadays, emancipation refers to the point at which a child is free from parental control. It occurs when the child's parents no longer perform their parental duties and surrender their rights to the care, custody and earnings of their minor child. Emancipation may be the result of a voluntary agreement between the parents and child, or it may be implied from their acts and ongoing conduct. For example, a child who leaves her parents' home and becomes entirely self-supporting without their objection is considered emancipated, while a child who goes to stay with a friend or relative and gets a part-time job is not. Emancipation may also occur when a minor child marries or enters the military.
Copyright © 2005 Nolo
Posted on December 22, 2005 by J. Benjamin Stevens
A divorce automatically granted by a court when the spouse who is served with a summons and complaint for divorce fails to file a formal response with the court. Many divorces proceed this way when the spouses have worked everything out and there's no reason for both to go to court -- and pay the court costs.
Copyright © 2005 Nolo
Posted on December 5, 2005 by J. Benjamin Stevens
A divorce obtained in a different state or country from the place where one spouse resides at the time of the divorce. As a general rule, foreign divorces are recognized as valid if the spouse requesting the divorce became a resident of the state or country granting the divorce, and if both parties consented to the jurisdiction of the foreign court. A foreign divorce obtained by one person without the consent of the other is normally not valid, unless the nonconsenting spouse later acts as if the foreign divorce were valid, for example, by remarrying.
Copyright © 2005 Nolo
Posted on November 10, 2005 by J. Benjamin Stevens
A document that provides proof of a marriage, typically issued to the newlyweds a few weeks after they file for the certificate in a county office. Most states require both spouses, the person who officiated the marriage and one or two witnesses to sign the marriage certificate; often this is done just after the ceremony.
Copyright © 2005 Nolo
Posted on November 3, 2005 by J. Benjamin Stevens
If one spouse meets the residency requirement of a state or country (such as having lived there from six months to a year), a divorce obtained there is valid, even if the other spouse lives somewhere else. The courts of all states will recognize the divorce.
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Posted on October 26, 2005 by J. Benjamin Stevens
All states require a spouse to be a resident of the state -- often for at least six months and sometimes for as long as one year -- before filing for a divorce there. Someone who files for divorce must offer proof that he or she has resided there for the required length of time. Only three states -- Alaska, South Dakota, and Washington -- have no statutory requirement for resident status.
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Posted on October 19, 2005 by J. Benjamin Stevens
One spouse cannot stop a no fault divorce. Objecting to the other spouse's request for divorce is itself an irreconcilable difference that would justify the divorce.
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Posted on October 13, 2005 by J. Benjamin Stevens
When both parties have shown grounds for divorce, the court will grant a divorce to the spouse who is least at fault under a doctrine called "comparative rectitude." Years ago, when both parties were at fault, neither was entitled to a divorce. The absurdity of this result gave rise to the concept of comparative rectitude.
Nowadays, it's usually one spouse who files the divorce papers first; if the other person disagrees with the "fault" accusations, he or she can file an "answer" to the divorce complaint.
Copyright © 2005 Nolo
Posted on September 30, 2005 by J. Benjamin Stevens
Permanent separation. When a couple decides to permanently split up, it's often called a permanent separation. It may follow a trial separation, or may begin immediately when the couple starts living apart. In most states, all assets received and most debts incurred after permanent separation are the separate property or responsibility of the spouse incurring them. However, debts that happen after separation and before divorce are usually joint debts if they are incurred for certain necessities, such as to provide for the children or maintain the marital home. Again, a couple's decision to permanently separate may not be considered a legal one unless one party takes the other to court for support or custody pending a divorce action. This then leads to a state of legal separation.
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Posted on September 21, 2005 by J. Benjamin Stevens
Trial separation: When a couple lives apart for a test period, to decide whether or not to separate permanently, it's called a trial separation. Even if they don't get back together, the assets they accumulate and debts they incur during the trial period are usually considered jointly owned. This type of separation is usually not legally recognized, but is instead a specific period in a couple's relationship.
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Posted on September 14, 2005 by J. Benjamin Stevens
In a handful of states (listed below), heterosexual couples can become legally married without a license or ceremony. This type of marriage is called a common law marriage. Contrary to popular belief, a common law marriage is not created when two people simply live together for a certain number of years.
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Posted on August 3, 2005 by J. Benjamin Stevens
To get a court order, you must prepare and file some paperwork. Fill-in-the-blank forms may be available free from the court or online. In a few states -- unfortunately, not many -- court personnel may be available to help with the paperwork. Some courts also have self-help law centers for family law cases, with forms and instructions for people representing themselves.
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Posted on July 26, 2005 by J. Benjamin Stevens
When someone moves out of the house, one of you should go to court right away to quickly resolve any critical issues, such as spousal support. And, if the children will be staying with you, you should immediately file for custody and child support.
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Posted on July 19, 2005 by J. Benjamin Stevens
Let's say a husband moves out, and the wife who's left behind needs money to feed and shelter the children. Realizing that her children would starve long before a full trial could be held, she is desperate for help. She can go to court to request a temporary order from a judge, even though a formal divorce action has not yet been filed. Her request will be put on a fast track, and a hearing will be scheduled within days or weeks.
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Posted on July 13, 2004 by J. Benjamin Stevens
Like a divorce, an annulment is a court procedure that dissolves a marriage. But, unlike a divorce, an annulment treats the marriage as though it never happened. For some people, divorce carries a stigma, and they would rather their marriage be annulled. Others prefer an annulment because it may be easier to remarry in their church if they go through an annulment rather than a divorce.
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