They want a divorce that proves their superiority to their former spouse, and they will use every tool in family law, especially child custody rules, to defeat their ex.
]]> In these divorces, the child custody issue is going to be contentious. The court will approach the subject in light of the statutory factors. It is important to note that while the factors may appear as a checklist, it is up to the discretion and judgment of the court how to weigh each one.The factors are broad and somewhat vague, allowing broad interpretation as to how they apply to your specific divorce case. This means that if your spouse has the resources to hire experts and engage in nasty litigation, you may find yourself exhausted, both emotionally and economically.
If you find yourself ensnared in this type of litigation if you are fighting for your child, or simply to prove something to your former spouse. There is no victory in ruining your finances and your child’s college fund. The problem may be that you are too close to the raw emotions to be able to effectively analyze the situation.
This is when the professional experience of your attorney can help, providing insight in how to proceed. They can help you avoid internecine warfare that benefits no one.
Source: Huffington Post, “Custody Battles: Are They Worth the Fight?” Pauline Gaines, May 7, 2013
]]>Preemption is the idea that one law trumps another. For example, say some decision is made about a case because of a state law; but there is a federal law that contradicts the state law. Determining whether the federal law applies and "preempts" the state law is the idea of preemption.
]]> One case highlights how import the SCOTUS decisions on preemption will be. The life insurance of a deceased man in Virginia is currently being controlled by his ex-wife; not the wife he had when he passed away. This is because when he got married to his first wife, he listed her as his primary beneficiary on a federal life insurance plan. They divorced two years later, and a few years after that the man married his second wife, who is now a widow.The widow challenged the fact that the ex-wife got her husband's life insurance, citing a Virginia law that gives the life insurance to the current spouse rather than an ex-spouse. That turned the tide in the widow's favor, as a lower court upheld that law. But the ex-wife took the case to the Virginia Supreme Court, which reversed the decision. The case will now be heard by SCOTUS, to determine who gets the estate.
This story shows how important it is to stay current with the details and documents concerning your estate. When you file for divorce, make sure you change the beneficiaries on your estate, if that beneficiary is your soon-to-be-ex and you do not want him or her controlling your estate.
Source: Washington Post, "Will the widow or the ex-wife get the money? Supreme Court to decide," Diana Reese, April 22, 2013
]]>Issues like child support, child custody, visitation and parenting plans are all subject to modification at a later time, if you can show there has been a substantial or significant change in circumstances since the initial decree was ordered. However, we always point out that other issues, like the property settlement are much more difficult to modify.
]]> In most states, you have to show that there was actual fraud on the part of your former spouse before a court will permit you to reopen a property settlement and demand a change in the allocation of assets.While it is difficult, occasionally there are examples of this happening. The most recent involves Frank McCourt, the former owner of the Los Angles Dodgers. His ex-wife, Jamie, is claiming he fraudulently persuaded her that he was only worth $300 million, including the value of the Dodgers.
The problem for him is that two months after the divorce was final, he sold the Dodgers for $2.1 billion. It may be difficult for him to argue that he did not know what the sale price of the Dodgers was going to be when his divorce completed.
Source: CBS Los Angeles, "Frank, Jamie McCourt Headed Back To Court Over Bigger Divorce Settlement," April 17, 2013
]]>But some elements are the same. Take for instance your home. If you are like most couples, your home was purchased with a mortgage. While you have a possessory interest in the physical property, the bank or financial institution that holds your mortgage actually "owns" the home. During your divorce, you have to decide what to do with that home.
]]> You generally have two options. If neither spouse wants the property, you can sell it and divide the proceeds. Of course, this assumes you can sell the home. In the last few years, there have been cases of couples being trapped in their marriage by a home that they could not sell for a price high enough to pay off their mortgage. If you can sell it and pay off the mortgage, the remaining proceeds need to be divided, in some cases byThe other option is if one party wishes to remain in the home. This becomes much more complex, because they have to be able to afford the mortgage on their own, and most likely, refinance to remove the former spouse who is not remaining.
Lending institution like to have more, rather than less, parties they can collect missing payments from, so they may not be cooperative. This would mean the party keeping the home might need to take out a new mortgage solely in their name, which can be a daunting financial challenge.
These are all issues you should discuss with your divorce attorney. Your decision should be based on what will make the economic sense for your life after your divorce.
Source: Daily Herald, "Complications arise when splitting real estate in divorce," Jack Guttentag, April 13, 2013
]]>A case from Texas is one of deception. A man told his wife that their marriage was over and he put together a divorce online and left paperwork for her to sign. She never signed the documents, so the divorce was not effective and they remained legally married.
]]> It turns out, within hours of filing his never completed divorce with his first wife, he had married his second wife. He also told his first wife the needed to reconcile and lived with her during the week and with his second wife on weekends.After two and a half years after his second wedding, wife number one discovered his betrayal. When she finally reported him to the police, he was arrested and charged with bigamy, but within a few days his third anniversary passed and with it, the statute of limitations on the bigamy charge.
She quickly filed for a real divorce after she discovered what her husband had done. The lesson here is that do-it-yourself divorces carry potential problems and that working with an experienced divorce attorney is the best way to protect yourself in these situations.
Source: Forth Worth Star-Telegram, "Grapevine man went to great lengths to cover up dual marriages," Deanna Boyd, April 7, 2013
]]>But he at some point, on his Facebook page, he posted pictures of himself posing with cash and liquor that came to the attention of the district attorney's office. The office then contacted his family to ascertain if there might be more information available. Information that might relate to his ability to pay his child support obligation.
]]> If the district attorney's uncovers information showing probable cause, they can request a court order to allow them to view the Facebook profile. And then every post and every picture potentially can provide information regarding many elements of a person's financial situation that could be helpful to a district attorney's office looking for payment of child support.The significant issue for those involved in a divorce, and the aftermath of a divorce, is that Facebook and much of social media is, like diamonds, forever. The information posted on those pages and in tweets may reside for years on servers, only waiting for a request by someone.
Pictures of an expensive vacation on Facebook will eventually be found by someone with adverse interests during a divorce. This can damage your credibility with the court and lead to less than optimal results in your divorce settlement.
ABC News, "Facebook Money Pics Bust Dad for Allegedly Dodging Child Support," Alexa Valiente, March 22, 2013
]]>In a collaborative divorce, you work with your spouse to develop a workable custody, visitation, and support arrangements that will benefit both parties. Even the attorneys are invested in a positive outcome. Under collaborative law agreements, if negotiations between the two parties break down and they have to resort to a traditional, litigated divorce, the attorneys must withdraw representation and the couple must hire new lawyers.
]]> This means everyone is on the same page, working to reach positive solutions, without all the stress and high-drama of some incendiary divorces. This can save you money, as you may spend less time in court and less money on legal fees.You can obtain results more quickly, because you are not tied to a overcrowded court docket, and can work together to solve issues. Custody and visitations schedules can be realistically put together, because you know better than any judge what your time constraints are and what is likely to be the most successfully type of plan will work with your children and former spouse.
This has the added benefit of being less stressful for everyone, especially the children. It also enables you to begin your post-divorce relationship on the right footing, meaning those agreements are more likely to be followed and successful.
Source: The Tennessean, "Collaborative Divorce Offers Options To Court Battles," Maura Ammenheuser, March 20, 2013
]]>What happens if you are in a relationship that ends and there was no marriage? Good question. We can't tell you because there is no set of laws or court cases that we can look to and let you know what the likely outcome will be, unlike with a divorce. Even if the couple had children, other than the fact that they both remain parents to the child or children and both could owe child support, there is no other formal recognition of the ending of their relationship.
]]> For women, this is of concern, because unlike when a marriage ends, and she might be entitled to spousal support or a share in the man's military pension, she has no right to receive any economic support from the man.Because women still are the primary caregiver to children in a relationship, they may find themselves attempting to reenter the job market or get by with part-time wages. The ending also lacks any equitable distribution of the assets of the relationship, allowing the financially more sophisticated party to take advantage of the other party.
The lack of definiteness in the ending is also unsettling. Even if a man helps his former partner financially, there tends to be a vagueness that leaves both sides unsure what is appropriate.
While it sounds ironic, being married may make divorcing easier.
Source: Wall Street Journal, "The New Unmarried Moms," Kay Hymowitz, W. Bradford Wilcox and Kelleen Kaye, March 15, 2013
]]>Because there is no "do over" in divorce law. While some aspects of a divorce settlement may be subject to modification, you must first have a significant or substantial change in your circumstance and you must then hire an attorney and "go to court." This costs time, money and emotional strain.
]]> While you may be able to change some elements of a child custody or support order, if you have made a mistake with your property settlement, you do not get a second chance. In most states, the only way you can change a property settlement is by showing the other party engaged in actual fraud.And actual fraud is not the same as, "I didn't understand." This is why a family law attorney can be invaluable for assisting with your child custody or spousal support questions. When you are considering a divorce, there are many decisions you will need to make and you need to understand the consequences of those decisions.
Family law and divorce law is complex and the process is difficult enough without "procedural" mistakes hampering your life. A family law attorney is a professional who understands the process and can explain it to you, so you can make informed decisions about your future.
Source: The Colorado Springs Gazette, "Do-it-yourself divorce could be cause for regret," Linda Leitz, March 10, 2013
]]>Traditionally, the home was the largest single asset in the divorce, and prior to 2008, the home may have possessed substantial equity. This meant one party might want to "buy out" the other party and assume full ownership of the property. Today, the situation may be that the home may be "underwater," with a mortgage worth more than the potential sale price. This means that if it were sold, instead of dividing the equity from the sale, the couple could be dividing the deficiency balance.
]]> Even if there is equity in the property, you need to have an honest discussion with your divorce attorney on this subject and decide whether it makes sense. After a divorce, you are supporting two household on the same income.You have to refinance to remove your former spouse from the mortgage and the title. If you have not worked for a long time, or only work part-time, it may be impossible to secure refinancing to enable you to purchase the home.
If you have a comparable income to your spouse, it still may not be economically wise to take on the obligations that are involved with homeownership. The questions all need to be discussed and answered before your property settlement is finalized.
Source: Huffington Post, "Keeping the House After Divorce," Connell B. Kathleen, Feb. 22, 2013
]]>The study suggests that this will have a significant economic impact on their retirements. Divorce for those older than age 50 will be different from divorcing at age 30. While child custody issues will be reduced or nonexistent, as the children have grown and left home, spousal support issues could become much more important, and will be critical for women who stayed home to raise children and have not been in the job market for 20 or more years, if ever.
]]> Susan Brown, professor of sociology at Bowling Green State University and co-author of the report, notes, "Gray divorce can be economically devastating for some people, especially for women who have been out of the labor force bearing children."Two factors will complicate these gray divorces. If the couple does not have a retirement plan in place that they have contributed to over their working careers, they will have a greatly reduced amount of time to develop and fully fund an adequate retirement plan.
The other factor is two retirements are more expensive than one. It is estimated that it could cost 30 to 50 percent more to fund two separate households. This challenge is further complicated by the fall in many investment and retirement accounts during the Great Recession, leaving even those who planned well looking at a shortfall.
The housing market collapse during the same period also has made the financial position of many older couples much more tenuous. One financial planner stated, "Adapting to the changes a lot of times means scaling back."
Source: USA Today, "Boomer divorce: A costly retirement roadblock," Rodney Brooks, Feb. 26, 2013
]]>One reason for the increase in divorces, both in Oklahoma and across the nation, has been the change in social norms and conventional behavior when it comes to matters of substance abuse. Many partners who are married to someone with an addiction to drugs, alcohol, or another harmful substance are choosing to do what's right for them and their children and leave the marriage, rather than stay attached to the problem.
]]> New research that will appear in a forthcoming issue of the journal Alcoholism: Clinical & Experimental Research further asserts the ill omen that alcohol abuse can have for a couple's marriage. According to the journal's study, which drew data from nearly 20,000 married couples, the more one spouse drinks in a marriage, the more likely a divorce is imminent.The study also noted that divorce was more likely amongst marriages in which both partners had alcohol problems, but not as heightened as situations in which only one partner struggled with drinking. The study also noted alcohol's link to relationships that are more frequently verbally and physically abusive,.
Although couples should always do their best to be aware of their future partner's drinking before walking down the aisle, sometimes it is impossible to know that a drinking problem or full-blown alcoholism will develop, or if it already exists. Those that find themselves in a dangerous situation, one in which their spouse needs serious treatment, should also reach out to a family law attorney and explore the separation options available to them.
Source: Fox News, "Heavy drinking raises risk of divorce," Stephanie Pappas, Feb. 6, 2013
]]>And in some cases, use of the sites may have contributed to the divorce. Spouses may post items on Facebook that later are discovered by their spouse. Now, dating sites, like Match.com are receiving attention. A survey from the American Academy of Matrimonial Lawyers (AAML) finds that more divorce attorneys are seeing cases where evidence in the divorce case is found on dating sites.
]]> Even if a spouse was not cheating or engaged in an affair prior to commencing divorce proceedings, dating sites, like much of social media, are a potential minefield for people involved with a divorce.The danger is that social media can be very long lived. If you post some statement or picture on Facebook or tweet something, whatever it is, it may be found long after you created it. Servers may hold material for years. If it is out there in cyberspace, it can be found.
People often misrepresent themselves on dating sites, and while it may be done innocently to enhance their image for potential dates, it may look very bad in court hearing involving child custody matter, to have the judge ask why your profile indicates you have no children.
During a divorce, the safest course may be to avoid all social media to prevent inadvertent mistakes from affecting your case.
Source: American Academy of Matrimonial Lawyers, "Dating Websites Providing More Divorce Evidence Says Survey: Nation's Top Matrimonial Lawyers Cite Match.com as Most Common Source," February 11, 2013
]]>Divorced with children is a difficult course to take. You have to develop ways of dealing with your former spouse with all of the interaction you must have as you co-parent your children. While it may not be easy, the important thing to remember is that it can be done and the better you are able to make it work, the better your children will be.
]]> When courts make determinations concerning children in family law matters, the guiding principle they use is "the best interests of the children." Of course, the devil is in the details, and divorce parents may have differing views on what is in the best interest of their children, but even if you cannot always agree 100 percent, reminding yourself that the children's best interest should be your goal can help.Some recommendations on how to do this include recognizing that you can only control your side of the custody arrangement, and attempting to micromanage the other parent will only cause conflict.
Keep your communication factual and convey information, not hidden insults or sarcasm.
And while time may seem to drag when dealing with your ex, your children's childhood will be gone much more quickly than you realize when they are toddlers.
You don't want all of your memories to be of conflict and bad feelings, and you certainly don't want their memories to be of that. Work to maximize the good in your situation, and everyone will benefit.
Source: The Huffington Post, "Parenting After Divorce: 3 Things You Need To Know To Co-Parent More Peacefully," February 5, 2013
]]>Parents who have been taught to recognize these issues and how to improve them, have had better success with their children after a divorce. Researchers from Arizona State University have developed a program designed to help reduce problem with children during a divorce, including behavioral problems, substance abuse and issues involving mental health.
]]> The program works with mothers and fathers with the aim of improving their parenting skills, which in turn, helps to improve the relationships with their children. It also works to keep the children out of arguments and conflicts that arise between the divorced parents. Reducing or eliminated that conflict is show to be very beneficial to children of a divorce.One area that is often a problem in divorced families is discipline. Parents struggle on how to ensure that children receive a consistent message, when the parents may not always agree. The program helps parents develop the skills necessary properly discipline their children in a way that improves the parent/child relationship.
While the mother/child relationship is critical, the program also highlights the importance of father's relationship with their children. It found that having fathers actively listen to their children, helping with homework and spending time alone with each of their children has a positive impact. This combined with effective discipline improved children's behavior after a divorce.
Source: Ahwatukee Foothills News, "ASU offers classes for recently divorced parents to improve children's well-being," Jan. 23, 2013
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