Divorce in Pictures

I have to agree that this pictorial representation of a divorce trial is grimly humorous.

Hat tip: Maine Divorce Law blog

More on Spanking

Dr. Virginia Shiller, a licensed clinical psychologist who has commented here on the California spanking legislation, has offered further additional thoughts on this subject. I think that this issue is of sufficient importance, and that Dr. Shiller’s comments are especially interesting, that I will reproduce them in the body of this post. While I am on this subject, I would also highly recommend that anyone interested in the subject of child discipline visit Dr. Shiller’s website, Rewards for Kids. There is a wealth of helpful information. On the spanking question, Dr. Shiller offers the following:

Mark:
I’m glad you found my earlier comment thought-provoking. Pleas feel free to use my name in posting this comment.
Let me address the issue of cultural context. The major argument that spanking is harmful to children rests on longitudinal studies, done with Caucasian families, that have found that “power assertive punishment” strategies, which include spanking, are associated with later disruptive behavior problems in children. A handful of studies conducted with minority (primarily African American) families found that as a group, minority children who are spanked do not develop the behavior problems seen in Caucasian populations.
One hypothesis that has been put forth is that the consequences of disobedience in a low-income environment may be much more serious and may require more forceful methods to prevent misbehavior. Apparently, a common saying in the African American community is “I’d rather my child get a beating from me than from the police.” And, it is possible minority parents who spank do so in the context of a more loving relationship. While I do think minority families could benefit from learning positive discipline methods, we have to be culturally sensitive when we contemplate ‘criminalizing’ parenting behaviors.

A Dozen Things to Consider Before Filing for Divorce

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:

 

1. 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.
2. 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.
3. 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. 
4. 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.

1. 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.
2. 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.
3. 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.
4. 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. 
5. 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.
6. 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?
7. 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.
8. 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. 

Source for post: Maine Divorce Law Blog

Top Financial Mistakes in Divorce

Divorces can be complicated and messy, both from a personal and a financial standpoint.’ Forbes‘ published an article a couple of years ago which listed financial mistakes that everyone should try to avoid.’ Here is their list, with my comments about each point listed afterward:

• Having unrealistic expectations. Parties often forget that their living expenses typically double when they separate.’ The same income(s) now must support not one, but two households, and it is not uncommon for things to get tight for a period of time.
• Not communicating.‘ It is extremely important that clients give their attorney all of the necessary information about their case, and not just the information that they think the attorney needs to know.’ Those ‘little’ things that the client thought that no one would ever find out or that really didn’t seem that important can result in disasterous consequences for the clients if their attorney is blindsided with them at trial.
• Getting into an endless battle. Some divorcing spouses fight in Court because they want to fight.’ Either they can’t get past their own emotional hurt from the divorce itself, they want to make their spouse’s life miserable, or they just enjoy turmoil, stress, and fighting.’ Parties would be well served to fight only those issues which truly need to be fought and act reasonably throughout the process.
• Getting hung up on the numbers.‘ It is important for the marital estate to be divided fairly between the parties, which generally means an approximately equal distribution.’ However, there will always be some assets which would be better going to one spouse than the other, and in some cases it makes sense to use a different distribution to accomplish other necessary goals.’ For instance, one spouse may benefit from taking less of the marital estate in exchange for a larger amount of spousal support (alimony).
• Focusing on the present and not on the future.‘ The financial issues in a divorce affect both parties long after the divorce is over.’ Parties should realize that when they are attempting to get as much as they can by way of assets that there are often debts and other expenses that accompany them.’ It makes no sense to fight to get something that you truly can’t afford to keep in the long run.
• Forgetting to assess tax.‘ Many issues in divorce cases have tax consequences, and many of those do not show up until after the fact.’ Examples can include alimony payments,’ dependency exemptions, and captial gains issues. Parties are well served by having an accountant available to discuss these issues before it’s too late.
• Overlooking important information.‘ It is important to make sure that everything in your divorce case is addressed and thoroughly analyzed by your attorney.’ For instance, are you sure that your spouse doesn’t have a retirement account with his employer and/or are you sure that the balance is what he/she says it is?’ Let your attorney obtain the necessary information directly from the source to verify it authenticity and accuracy.
• Failing to untangle all joint finances.‘ The sooner you can separate yourself financially from your spouse, the better off you will typically be.’ If your spouse fails to make a timely payment on a joint debt, that stain can show up on your credit report.’ Likewise, you may still be liable to the lender if your name is on that account and your spouse doesn’t pay.
• Failing to take into account the amount of time you’ll to get your career back on track.‘ In many marriages, one (or both) spouses have made career sacrifices — either for each other or for their children.’ In these situations, it takes time for that spouse to be in a position to earn an income comparable to the other spouse, if ever.’ Keep this in mind when you are going through a divorce, because in most cases, the parties do not have an equaly financial standing at the outset.

Source:’ ‘Top Financial Divorce Mistakes‘ by Leah Hoffmann, published at Forbes.com.Source for Post: South Carolina Family Law Blog.

Source: Kansas Family & Divorce Lawyer blog

 

Do You Need a Lawyer For Your Family Law Case?

Ben Stevens of the South Carolina Family Law Blog published this interesting post on this question:

Parties involved in Family Court cases face some of the toughest issues that people must deal with in their lives. Divorce and separation cases involve the loss of a partnership and the end of a relationship that was once close and filled with love. Custody and visitation cases affect the amount of time that a parent spends with the most precious thing in his or her life. Other cases involve financial issues which can determine whether a party has enough money on which to survive in the short and/or long term.

When faced with these important issues, most people want to seek the advice and assistance of an experienced, competent attorney. Ideally, you want to find an attorney who is not only trained in and very knowledgeable of the law, but who also has experience in preparing documents, courtroom procedure, settlement negotiation, and other aspects of Family Court cases. Hiring an attorney will help things to run more smoothly in your case and will increase the likelihood of your receiving a favorable result in your case.

Although it is possible to represent yourself in Family Court, it is not advisable in the vast majority of cases. Should you choose to represent yourself, the Court will not be able to assist you with your case in any manner. You will be held to the same requirements of the other party’s attorney with regard to the law, procedure, and all other issues. Should you mishandle your own case due to lack of knowledge or lack of skill, it is unlikely that an attorney will later be able to undo your mistakes.

Typically during your first meeting with an attorney, he will be able to assess your case and advise you of your rights and options in light of the specific facts of your case. Considering the types of issues addressed in Family Court cases, you must be comfortable sharing with your attorney information that may be personal or otherwise confidential. Certainly, doing so may be uncomfortable for you, but these types of details can make a big difference in your case. Your lawyer must be aware of everything that might pertain to your case, so it is important that you be comfortable in sharing these details with another person.

Though many people may balk at the cost of hiring an attorney, the fees charged are usually worth the experience and professionalism that an attorney can bring to the courtroom. There are certain areas of the law in which an experienced, aggressive attorney is highly recommended in order for you to have a fair trial or to negotiate the settlement that you deserve. If you had to ask yourself whether you need an attorney — you probably do and you’ll be glad later that you did.

Source: South Carolina Family Law Blog

Roses, Candy and Taxes: Tax Effects of Marriage, Divorce Life Changes Can Have Major Tax and Financial Implications

Whether you’re tying the knot or severing the tie, Valentine’s Day is a natural time to examine the tax implications of marriage and divorce. H&R Block offers these tax tips if you’re considering one of these life changes.

More than just wedding gifts and thank you notes, marriage also means planning for a joint financial future, including how the couple’s tax situation has changed: Marriage means choices.

The IRS allows married couples to file using the “married filing jointly” or “married filing separately” status. Each has advantages that can be difficult to sort out. For example, if you claim medical expenses or other itemized deductions that are limited by your adjusted gross income, filing separately may be the way to go. But if you want to claim most tax credits or deduct your IRA contribution, you’ll probably need to file jointly. Consult your tax professional to determine the right choice for your first time filing together.

Social Security numbers don’t change, but anyone who has changed their last name will need to apply for a new Social Security card. If the name and number don’t match, the IRS might delay processing of the return, which means a refund could take longer than usual to arrive.

Marriage also means adjusting retirement savings. Besides changing filing status on an employer’s 401(k) account, newly married taxpayers also should consider increased limits for tax-deductible IRA contributions. If the couple’s income meets certain limits, they could qualify for more of a deduction. In some scenarios, one spouse also may “borrow” from the other’s earnings to meet the limits.

Inform the IRS of a new address. If the IRS does not have the correct address on file for a newly married couple, it could take longer for a refund to arrive. Taxpayers shouldn’t count on mail to be automatically forwarded and should consider filing Form 8822 to inform the IRS.

Divorce also can change a taxpayer’s financial situation. The best advice is to understand the divorce agreement and its terms, especially key components that could complicate a tax return.

Alimony is taxable and deductible. The person who provides alimony can claim the payments as a deduction, while the person who receives it can avoid a large end-of-year tax bill by paying estimated taxes during the year. Unlike alimony, child support is not deductible or taxable.

Who claims children? The parent who has custody of a child usually can claim the child as a dependent. However, with the custodial parent’s consent, the parent without custody can claim the child. (The custodial parent may still be able to claim certain tax benefits related to the child, including head of household filing status, the Earned Income Tax Credit, and the child-care credit.)

Who is a head of household? There are several factors for determining the head of a household. A few include being considered “unmarried” on the last day of the year, having children or other dependents who live with you, and paying more than half the cost of providing a home for dependents. Taxpayers should consult with a tax professional to determine if they qualify for head-of-household status.

Divorce, annulment and legal separation are considered the same by the IRS for tax purposes. The way a tax return is affected by the situation depends on how the decree is worded, and in cases where state and federal law differ, the IRS will side with the federal government.

Source for post: California Divorce and Family Law

Britney Spears Back in Rehab – Again

I usually try to refrain from commenting on celebrity gossip type items on this blog. I don’t think that such “news” is especially meaningful to what I am trying to do here. But the Britney Spears story has finally reached a point where I thought a few words were in order. I do not especially care much about Ms. Spears private life, or that of her soon to be ex-husband, for that matter. But I might suggest that the way she has comported herself of late is not coinsistent with what I would suggest is appropriate behavior for a mom in the midst of a divorce and custody dispute. I am not casting aspersions, or commenting on the circumstances that led Ms. Spears to conclude that a rehab program was in order. But if your state is such that you need rehab, check yourself in and finish the program. Don’t treat the facilities as if they were the revolving door at Macy’s, or the Burger King drive through. Take it seriosuly and see it through. and for crying out loud, don’t shave all your hair off in public on a whim, and stay out partying all night with the Hollywood crowd. This is hardly the portrait of a woman capable of providing a stable home life for two young children. I hope that Ms. Spears listens to the professionals – legal, mental health and others who can help her – and that she gets her life in order. For the sake of her children if for no other reason. This train wreck has gone on long enough.

Rhode Island Moves Toward Same Sex Marriages

From the New York Times:

BOSTON, Feb. 21 — The Rhode Island attorney general said Wednesday that same-sex marriages performed in Massachusetts, the sole state where they are legal, should be recognized in Rhode Island.

Responding to a request for a legal opinion from the commissioner of the Rhode Island Board of Governors for Higher Education, Attorney General Patrick C. Lynch said the state prohibited discrimination based on sexual orientation and did not explicitly prohibit same-sex marriage.

“Rhode Island will recognize same-sex marriages lawfully performed in Massachusetts as marriages in Rhode Island,” the seven-page opinion said.

Mr. Lynch said his interpretation permitted recognition of the marriages, although he acknowledged that it was just an opinion and did not have the force of law.

“This is about Rhode Island citizens who entered into a valid, legally recognized same-sex marriage and returned here to live and work,” Mr. Lynch, a Democrat, said in an interview. “There is no way, no law, no constitutional provision and, in my estimation, no right to allow the denial of basic human rights.”

A spokesman for Gov. Donald L. Carcieri, a Republican who opposes same-sex marriage, said Mr. Carcieri and his legal counsel were studying the opinion.

The request from the board, which oversees the state’s three public colleges, went to Mr. Lynch on Feb. 1 after three employees who had same-sex marriages in Massachusetts asked that their personnel files be changed to reflect that they were married, said Steven Maurano, a spokesman for the board. Mr. Maurano said the board would abide by the attorney general’s opinion.

“We asked for the opinion,” he said. “So now that we have the opinion it’s probably incumbent for us to follow it.”

Mr. Lynch said businesses and state agencies could choose whether to abide by the opinion.

“Perhaps litigation will flow from it,” he added.

Bills to allow and to bar same-sex marriage, as well as one to create civil unions, were filed this year in the General Assembly. Previous bills on the subject died.

In September, a judge in Massachusetts ruled that Rhode Island couples could marry in Massachusetts because Rhode Island did not have a law barring same-sex marriage.

At the time, Mr. Lynch said that the ruling did “not mean that Rhode Island will recognize a same-sex marriage performed in Massachusetts.”

Mr. Lynch said Wednesday that the statement applied because a Massachusetts judge could not determine the course of Rhode Island law.

Michele Granda, a staff lawyer with Gay and Lesbian Advocates and Defenders, who argued the Massachusetts suit for two Rhode Island women, applauded Mr. Lynch’s opinion, saying that it “brings peace of mind to married couples and clear direction to their employers.”

Source: The  New York Times

More on the NY Grandparent Visitation Case

Daniel Clement has posted the following analysis of the New York grandparent visitation decision on his blog, the New York Divorce Report:

The Court of Appeals in Matter of E.S. v P.D., unanimously upheld a constitutional challenge to New York’s grandparent visitation law.

In upholding the New York Law which permits grandparents, under certain circumstances, to seek visitation with their grandchildren, the Court distinguished the New York law from the overly broad Washington law struck down by the United States Supreme Court in Troxel v Granville (530 US 57 [2000]).

The statute invalidated in Troxel permitted “‘[a]ny person’ to petition for visitation rights ‘at any time,’ and authorize[d] that court to grant such visitation rights whenever ‘visitation may serve the best interest of the child'” (Troxel, 530 US at 60 [quoting Wash Rev Code § 26.10.160(3) (1994)]). The Washington statute explicitly applied a presumption in favor of grandparent visitation, placing on the parent “the burden of disproving that visitation would be in the best interest” of her children.

The New York Statute, on the other hand, presumes that the parent’s wishes represent the best interests of the children.  The Court noted that:

. . . courts should not lightly intrude on the family relationship against a fit parent’s wishes. The presumption that a fit parent’s decisions are in the child’s best interests is a strong one. And while, as we made clear in Wilson, the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation. “It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement” (Lo Presti v Lo Presti, 40 NY2d 522, 526 [1976]).

While this presumption creates a high hurdle, the grandmother in this case surmounted it: from the time the child was almost four until he was seven, grandmother was his surrogate, live-in mother. The court then properly went on to consider all of the many circumstances bearing upon whether it was in the child’s best interest for his relationship with grandmother to continue — e.g., the reasonableness of father’s objections to grandmother’s access to the child, her caregiving skills and attitude toward father, the law guardian’s assessment, the child’s wishes — before making a judgment granting visitation.

Section 72(1) of the Domestic Relations Law states that

“[w]here either or both of the parents of a minor child, residing within this state, is, or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply to [supreme or family court] and . . . the court, by order after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.”

Section 72(1) “does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek [*5]visitation with a minor grandchild” (Matter of Wilson v McGlinchey, 2 NY3d 375, 380 [2004] [internal quotation marks and citation omitted]). When grandparents seek visitation under section 72(1), the court must undertake a two-part inquiry. “First, [the court] must find standing based on death or equitable circumstances”; and “[i]f [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild” (Matter of Emanuel S., 78 NY2d at 181

Source: New York Divorce Report.

New York Court Upholds Grandparent Visitation

The New York Court of Appeals, that state’s highest court, has upheld the state’s grandparent visitation statute. The law permits grandparent visitation rights where it is shown that one parent is deceased, or equity would otherwise warrant such visitations. As I noted in a previous post on this issue, the Pennsylvania Supreme Court in a recent case, likewise found that orders requiring grandparent visitation do not violate the custodial parent’s 14th amendment right to raise his or her children as he or she sees fit. A petition for certiorari, seeking review in the United States Supreme Court, has been filed in the Pennsylvania case. Whether in the context pf the Pennsylvania case or otherwise, there can be little doubt that the Supreme Court will ultimately have to weigh in on this issue again.