In a previous post, I discussed why posting details about your divorce on Facebook is not a good thing. For those of you who just can't get away from blogging, there is a website where you can do so and attempt to remain anonymous. I say attempt because there is no way to keep information anonymous when you post it on the internet. For those of you in the middle of a divorce, keep in mind that anything you post can and, if located by your spouse or his/her lawyer, will be used against you in Court.
Legal disclaimers aside, the website is lousyspouse.com. Its mission statement is to provide support to anyone going through the divorce process. And this includes a forum for venting about everything divorce-related- including your attorney.
Thursday, October 29, 2009
Tuesday, August 4, 2009
Divorce Court: understanding what a Judge can and cannot do
Much of the angst associated with divorce results from a misunderstanding of the court's role in the process. Many times I've heard, as a mediator and as an attorney, "I'll just take it to court", meaning the Judge will make all of this fair for me.
While the courts do strive for fairness, there are limits on what a judge can or cannot do, especially in the current challenging economic times where job losses and foreclosures are on the rise. No matter what the economic situation of a couple is, a judge cannot make a situation fair from an emotional standpoint.
One of the most important things a person can do to avoid a costly divorce is to avoid unrealistic expectations. No one will walk away "with everything" and no judge will decide if your spouse was a good partner to you. In addition to emotional expectations, a person's economic expectations need to be held in check as well.
The information below was excerpted from a divorce magazine article featuring Judge Toler, of Divorce Court fame:
The judiciary is required to provide both fairness and resolution, a difficult thing to do in a divorce. What could be more complicated than untangling lives that have been intertwined on every level for years? How can the law address all of the nuances of everyday life and the entire range of human behavior?
The answer is, it can't. Unfortunately, in order to achieve resolution, sometimes the law must make generalizations with respect to what is fair. So your court's answer to "how do we end this" may seem somewhat arbitrary. Sometimes the law simply has to say: "This is the way we are going to do things."
What the divorce courts say
Canada and many U.S. states, including Florida, have adopted child support guidelines, a mathematical formula in which you plug in the numbers (income and the like) and do the math, and out comes the support amount.
In a community property state, the court looks to divide marital property 50/50, no matter who made what during the course of the marriage.
In an "all property" state, the law may not distinguish between marital and separate property at all.
Canada and most U.S. states (with the notable exception of New York, where fault is an issue in contested divorces) provide no-fault divorces. That means the court will not consider either spouse's misconduct during the marriage in determining support or property division, except in cases where a spouse's misconduct has depleted assets.
These generalizations notwithstanding, it doesn't mean that a judge has no ability to make equitable determinations based on individual circumstances. Judges almost always have some judicial discretion. That's the leeway the law gives to judges in implementing those general rules. Sometimes, the law will give the judge the ability to consider not only the factors outlined by the statute but also any other factors that will promote a just and fair outcome. In some no-fault jurisdictions, a judge can consider a party's misconduct if that party's actions are sufficiently outrageous or depleted the marital assets. Even when the law requires judges to follow mathematical support guidelines, a judge may deviate from them in certain situations, although they are typically required to provide written support for their decision.
In sum, the Court tries to strike a balance between applying the law and being fair. But, in the end, the court gives you the most important thing of all: resolution.
While the courts do strive for fairness, there are limits on what a judge can or cannot do, especially in the current challenging economic times where job losses and foreclosures are on the rise. No matter what the economic situation of a couple is, a judge cannot make a situation fair from an emotional standpoint.
One of the most important things a person can do to avoid a costly divorce is to avoid unrealistic expectations. No one will walk away "with everything" and no judge will decide if your spouse was a good partner to you. In addition to emotional expectations, a person's economic expectations need to be held in check as well.
The information below was excerpted from a divorce magazine article featuring Judge Toler, of Divorce Court fame:
The judiciary is required to provide both fairness and resolution, a difficult thing to do in a divorce. What could be more complicated than untangling lives that have been intertwined on every level for years? How can the law address all of the nuances of everyday life and the entire range of human behavior?
The answer is, it can't. Unfortunately, in order to achieve resolution, sometimes the law must make generalizations with respect to what is fair. So your court's answer to "how do we end this" may seem somewhat arbitrary. Sometimes the law simply has to say: "This is the way we are going to do things."
What the divorce courts say
Canada and many U.S. states, including Florida, have adopted child support guidelines, a mathematical formula in which you plug in the numbers (income and the like) and do the math, and out comes the support amount.
In a community property state, the court looks to divide marital property 50/50, no matter who made what during the course of the marriage.
In an "all property" state, the law may not distinguish between marital and separate property at all.
Canada and most U.S. states (with the notable exception of New York, where fault is an issue in contested divorces) provide no-fault divorces. That means the court will not consider either spouse's misconduct during the marriage in determining support or property division, except in cases where a spouse's misconduct has depleted assets.
These generalizations notwithstanding, it doesn't mean that a judge has no ability to make equitable determinations based on individual circumstances. Judges almost always have some judicial discretion. That's the leeway the law gives to judges in implementing those general rules. Sometimes, the law will give the judge the ability to consider not only the factors outlined by the statute but also any other factors that will promote a just and fair outcome. In some no-fault jurisdictions, a judge can consider a party's misconduct if that party's actions are sufficiently outrageous or depleted the marital assets. Even when the law requires judges to follow mathematical support guidelines, a judge may deviate from them in certain situations, although they are typically required to provide written support for their decision.
In sum, the Court tries to strike a balance between applying the law and being fair. But, in the end, the court gives you the most important thing of all: resolution.
Friday, July 31, 2009
Saving marriages during a recession
One New Jersey family therapist took to heart President Obama's national service provision. Its a little known portion of the economic recovery plan which calls for a national service plan similar to the Civilian Conservation Corps, which was created in response to the eerily similar Great Depression. But Dr. Alan Singer is doing more to answer the call than the President requested.
In response to a blog posting criticizing the plan, Singer submitted the following:
"I want to take it one step further during these stressful times of increasing unemployment and home foreclosures. I believe it is time to think about giving one day a month to help others by using our profession skills, especially to help those who recently lost their job or their house."
Singer volunteers his services on the weekends, meeting with couples who have been hard hit by the recession and whose marriages are struggling as a result. He spends his "free" time, free in two senses of the word, helping middle aged couples address the loss of the savings and helping younger couples struggle with the decision to begin or expand a family in these tough economic times.
Singer has seen the "nightmarish" stress that unemployment and foreclosure can impose on a marriage. He said there's an overwhelming lack of hope among these victims of the recession, for whom each new day brings only a new bill to pay or resume to submit.
If Singer had his way, these marriages would all survive. His efforts will certainly help some. But, even if divorce is inevitable, Singer's efforts will help these couples deal with the reality of divorce without the negative emotions that cause people to engage in battles over property (even when there is no property to fight over) and children.
In response to a blog posting criticizing the plan, Singer submitted the following:
"I want to take it one step further during these stressful times of increasing unemployment and home foreclosures. I believe it is time to think about giving one day a month to help others by using our profession skills, especially to help those who recently lost their job or their house."
Singer volunteers his services on the weekends, meeting with couples who have been hard hit by the recession and whose marriages are struggling as a result. He spends his "free" time, free in two senses of the word, helping middle aged couples address the loss of the savings and helping younger couples struggle with the decision to begin or expand a family in these tough economic times.
Singer has seen the "nightmarish" stress that unemployment and foreclosure can impose on a marriage. He said there's an overwhelming lack of hope among these victims of the recession, for whom each new day brings only a new bill to pay or resume to submit.
If Singer had his way, these marriages would all survive. His efforts will certainly help some. But, even if divorce is inevitable, Singer's efforts will help these couples deal with the reality of divorce without the negative emotions that cause people to engage in battles over property (even when there is no property to fight over) and children.
Tuesday, July 21, 2009
Florida’s relocation statute and proposed changes
A couple of years ago, Florida lawmakers modified the relocation statute to include a rather strict set of requirements for a primary residential parent seeking to leave the state, or the geographical area, with the minor children. Currently, only the primary parent needs to take these steps prior to relocating. But, if a non-residential parent leaves the state, or moves more than 50 miles away, chances are good that the time sharing schedule with the children will change. This is often the subject of much after the fact litigation as the non residential parent moves and then seeks to modify or enforce visits with the children. A proposed change in the law may affect the non residential parent who doesn’t take steps to address the timesharing schedule before moving.
The proposed new law will require the non-residential parent to file a Notice of Relocation similar to the one a primary parent is now required to file. The notice will have to include a proposed time sharing schedule. If the parents cannot reach an agreement, the Court will hold a hearing and set a time sharing schedule which takes into account the travel distance between the child or children and the relocating non-residential parent. The Court may also address the issue of who will be responsible for travel expenses and whether the non-residential parent should receive an offset against child support for these expenses.
There is also a provision addressing the situation where the parent who moves away spends less time with the children. In such cases, child support may be modified upward to take into account the increased expenses borne by the residential parent.
It is too soon to say what provisions will be included, or whether the law will change at all. However, given the new timesharing statute and the trend towards more parents spending equal time with their children, it is clear that the state lawmakers need to set rules in place for situations where either parent moves away, especially since there is no longer a primary residential parent designation.
The proposed new law will require the non-residential parent to file a Notice of Relocation similar to the one a primary parent is now required to file. The notice will have to include a proposed time sharing schedule. If the parents cannot reach an agreement, the Court will hold a hearing and set a time sharing schedule which takes into account the travel distance between the child or children and the relocating non-residential parent. The Court may also address the issue of who will be responsible for travel expenses and whether the non-residential parent should receive an offset against child support for these expenses.
There is also a provision addressing the situation where the parent who moves away spends less time with the children. In such cases, child support may be modified upward to take into account the increased expenses borne by the residential parent.
It is too soon to say what provisions will be included, or whether the law will change at all. However, given the new timesharing statute and the trend towards more parents spending equal time with their children, it is clear that the state lawmakers need to set rules in place for situations where either parent moves away, especially since there is no longer a primary residential parent designation.
Sunday, July 19, 2009
Recession is the right time to divorce: family law attorneys weigh in on the subject
It is no secret that divorce filings have decreased in recent months. Many people believe they are in a situation where they "can't afford to divorce". However, two divorce lawyers believe differently.
According to a St. Louis attorney who describes himself as representing men in divorce, the current recession is the ideal time to divorce. If divorce is going to happen, he reasons, its far better to divorce at a time when assets and income are at their lowest.
A Tampa based divorce attorney who represents women agrees, but for different reasons.
The recession can be used to his client's advantage as well, especially in what were two income families. If a woman has been laid off from her job, it stands to reason that she will have a need for increased child support and alimony.
Its hard to say whether many people agree with the reasoning of either lawyer. One thing is clear: divorce rates in south florida have declined. In Miami-Dade County, divorces dropped from 3,239 for the first three months of 2008 to 3,196 during the same period in 2009. In Broward, the number dropped from 2,148 for the first quarter of 2008 to 1,543 for the same period in 2009.
No one can say which gender will fare better by divorcing in a recession. But the one encouraging thing I see, as a collaborative attorney and a mediator, is that many couples are not buying into this "seize the opportunity to divorce now and pay less to your spouse" mentality. They seem to recognize that their spouse may not go quietly with less money and will probably launch a counter attack, i.e. a highly contested divorce. A highly contested divorce = lots of money spent in lawyer fees. Forget dividing what is left of the 401k- it will be liquidated and divided between your two attorneys.
If this happens, the economic gain advertised by these lawyers, i.e., less assets to give to your spouse, less alimony/child support, etc., will be offset by the high cost of contested divorce litigation. As the saying goes, only the lawyers will win. It appears that many recognize this, preferring to wait to divide their union in less economically distressed times and, perhaps ironically, have decided that, at least for the present, that they are in this together.
According to a St. Louis attorney who describes himself as representing men in divorce, the current recession is the ideal time to divorce. If divorce is going to happen, he reasons, its far better to divorce at a time when assets and income are at their lowest.
A Tampa based divorce attorney who represents women agrees, but for different reasons.
The recession can be used to his client's advantage as well, especially in what were two income families. If a woman has been laid off from her job, it stands to reason that she will have a need for increased child support and alimony.
Its hard to say whether many people agree with the reasoning of either lawyer. One thing is clear: divorce rates in south florida have declined. In Miami-Dade County, divorces dropped from 3,239 for the first three months of 2008 to 3,196 during the same period in 2009. In Broward, the number dropped from 2,148 for the first quarter of 2008 to 1,543 for the same period in 2009.
No one can say which gender will fare better by divorcing in a recession. But the one encouraging thing I see, as a collaborative attorney and a mediator, is that many couples are not buying into this "seize the opportunity to divorce now and pay less to your spouse" mentality. They seem to recognize that their spouse may not go quietly with less money and will probably launch a counter attack, i.e. a highly contested divorce. A highly contested divorce = lots of money spent in lawyer fees. Forget dividing what is left of the 401k- it will be liquidated and divided between your two attorneys.
If this happens, the economic gain advertised by these lawyers, i.e., less assets to give to your spouse, less alimony/child support, etc., will be offset by the high cost of contested divorce litigation. As the saying goes, only the lawyers will win. It appears that many recognize this, preferring to wait to divide their union in less economically distressed times and, perhaps ironically, have decided that, at least for the present, that they are in this together.
Thursday, July 2, 2009
DO IT YOURSELF DIVORCE PART FOUR: PREPARING A SETTLEMENT AGREEMENT
In the last do it yourself divorce article, I discussed how reaching an agreement is only a step in the process. A parenting plan and marital settlement agreement must be prepared and filed with the Court. This is another area where do it yourself divorce participants can run into trouble. Since most do it yourself divorce participants do not have experience in drafting divorce agreements, its not uncommon to miss important details and end up with an incomplete agreement.
One of the most common omissions is a detailed parenting plan. Many people believe they will simply work matters out as they arise and do not create detailed schedules for timesharing, holidays or vacation time. Do it yourself divorce participants may also forget to discuss extracurricular activities or college expenses. If a dispute arises later, some of these items may be waived because they are not included in a settlement agreement. It is important to take the time to address each and every issue before a problem arises. A divorce attorney or family law mediator may be of assistance in helping a do it yourself divorcing couple identify and reach agreement on all children-related issues.
A do it yourself divorce agreement may also lack time parameters or specifics for the sale or transfer of property. For example, if one person is going to keep a house or other property and needs to refinance to remove the other person’s name, the do it yourself divorce agreement may fail to state when the refinance will take place. Or, if a property is to be sold, the do it yourself divorce agreement may have no language about selecting a realtor, agreeing on a sales price or what to do about repairs and expenses before the home or property is sold.
The above are only a few examples of details that may be overlooked in a do it yourself divorce agreement. It is important to be as specific as possible in order to avoid problems and disputes down the road. Anyone who has specific questions about a do it yourself divorce agreement should consult a divorce attorney.
In the next post, I will discuss the last stage of the divorce process- the final hearing- as well as the matters that come up after a divorce becomes final.
One of the most common omissions is a detailed parenting plan. Many people believe they will simply work matters out as they arise and do not create detailed schedules for timesharing, holidays or vacation time. Do it yourself divorce participants may also forget to discuss extracurricular activities or college expenses. If a dispute arises later, some of these items may be waived because they are not included in a settlement agreement. It is important to take the time to address each and every issue before a problem arises. A divorce attorney or family law mediator may be of assistance in helping a do it yourself divorcing couple identify and reach agreement on all children-related issues.
A do it yourself divorce agreement may also lack time parameters or specifics for the sale or transfer of property. For example, if one person is going to keep a house or other property and needs to refinance to remove the other person’s name, the do it yourself divorce agreement may fail to state when the refinance will take place. Or, if a property is to be sold, the do it yourself divorce agreement may have no language about selecting a realtor, agreeing on a sales price or what to do about repairs and expenses before the home or property is sold.
The above are only a few examples of details that may be overlooked in a do it yourself divorce agreement. It is important to be as specific as possible in order to avoid problems and disputes down the road. Anyone who has specific questions about a do it yourself divorce agreement should consult a divorce attorney.
In the next post, I will discuss the last stage of the divorce process- the final hearing- as well as the matters that come up after a divorce becomes final.
Do it yourself Divorce Part Three: Timesharing, Parenting Plans and Child Support
In a do it yourself divorce, the devil is often in the details. Many potential clients tell me that their divorce will be “uncontested” and that they and their spouse “agree on everything”. More often than not, people believe this to be the case only because they have discussed the big picture and not the details. Once two people begin discussing how much money one will pay the other for child support and who will spend this Christmas with the children, a seemingly uncontested divorce suddenly becomes anything but and the desire to remain amicable is replaced with threats about going to court.
As a Florida family law mediator, I find that the biggest disputes arise over child support, alimony or time sharing. In a do it yourself divorce, even the most amicable divorcing couples can find themselves taking different sides when it comes to matters involving parenting plans, support issues, i.e., child support or alimony and children. It is common to disagree on these aspects, because, after all, you are getting divorced. Do it yourself divorcing parties often reach a stalemate on these issues. Caught between the desire to handle the divorce themselves and the mounting frustration of not being able to reach agreement, many abandon the do it yourself divorce at this point and decide to simply battle it out in court.
In part two of this do it yourself divorce series, I urged anyone with questions about finances to consult with a divorce attorney and possibly a financial professional as well. Assuming there are no questions about income, the do it yourself divorce may be able to proceed with a little assistance. Using the services of a mediator may be very helpful in resolving a disagreement and getting both sides to reach a compromise. While a mediator cannot give you legal advice (and, as discussed previously, if you have questions about your child support or alimony rights or obligations, you should consult with a divorce attorney) he/she can help you work towards a settlement that you can both live with. Using the services of a family law mediator may cost more than a do it yourself divorce, but it may save you money in the long run if you are able to come to terms with your spouse. A family law mediator can also put your agreement and your parenting plan into writing so that you have a settlement agreement to file with the court.
A disagreement about time sharing, or a parenting plan, or even how to prepare a parenting plan are all issues that can cause parties to abandon the do it yourself divorce concept. Before “taking this to Court”, as many people indicate they wish to do when a disagreement arises, both parties need to keep in mind their reasons for choosing the do it yourself divorce process. Generally, the well being of the children is the main reason for trying to avoid court in the first place. When it comes to your children, you and your spouse are in the best position to decide what is in their best interest in terms of time sharing and making decisions about their health education or well being. While you may disagree on these issues, it is rare that anyone- parents and children included- will be happy with a Court Ordered schedule. This is another situation where it might be helpful to use the services of a divorce mediator to help you reach an agreement or to prepare your parenting plan.
Keep in mind that “agreeing on everything” is not the end of the process. A settlement agreement must be prepared and filed with the Court. In the next article, I’ll discuss the preparation of a settlement agreement and how to avoid the do it yourself divorce pitfalls.
As a Florida family law mediator, I find that the biggest disputes arise over child support, alimony or time sharing. In a do it yourself divorce, even the most amicable divorcing couples can find themselves taking different sides when it comes to matters involving parenting plans, support issues, i.e., child support or alimony and children. It is common to disagree on these aspects, because, after all, you are getting divorced. Do it yourself divorcing parties often reach a stalemate on these issues. Caught between the desire to handle the divorce themselves and the mounting frustration of not being able to reach agreement, many abandon the do it yourself divorce at this point and decide to simply battle it out in court.
In part two of this do it yourself divorce series, I urged anyone with questions about finances to consult with a divorce attorney and possibly a financial professional as well. Assuming there are no questions about income, the do it yourself divorce may be able to proceed with a little assistance. Using the services of a mediator may be very helpful in resolving a disagreement and getting both sides to reach a compromise. While a mediator cannot give you legal advice (and, as discussed previously, if you have questions about your child support or alimony rights or obligations, you should consult with a divorce attorney) he/she can help you work towards a settlement that you can both live with. Using the services of a family law mediator may cost more than a do it yourself divorce, but it may save you money in the long run if you are able to come to terms with your spouse. A family law mediator can also put your agreement and your parenting plan into writing so that you have a settlement agreement to file with the court.
A disagreement about time sharing, or a parenting plan, or even how to prepare a parenting plan are all issues that can cause parties to abandon the do it yourself divorce concept. Before “taking this to Court”, as many people indicate they wish to do when a disagreement arises, both parties need to keep in mind their reasons for choosing the do it yourself divorce process. Generally, the well being of the children is the main reason for trying to avoid court in the first place. When it comes to your children, you and your spouse are in the best position to decide what is in their best interest in terms of time sharing and making decisions about their health education or well being. While you may disagree on these issues, it is rare that anyone- parents and children included- will be happy with a Court Ordered schedule. This is another situation where it might be helpful to use the services of a divorce mediator to help you reach an agreement or to prepare your parenting plan.
Keep in mind that “agreeing on everything” is not the end of the process. A settlement agreement must be prepared and filed with the Court. In the next article, I’ll discuss the preparation of a settlement agreement and how to avoid the do it yourself divorce pitfalls.
Sunday, June 28, 2009
DO IT YOURSELF DIVORCE PART TWO: GATHERING THE ESSENTIAL FINANCIALS
In the first article about do it yourself divorce, I discussed what to do before getting started. The next step in the do it yourself divorce process is very important in deciding whether this is right for you.
Florida divorce law requires that parties getting divorce file financial affidavits and list all of their assets and liabilities. In order to draft a complete Marital Settlement Agreement, you need to know everything you own and everything you owe. This would include all bank accounts, credit card statements and retirement accounts. It is highly recommended in do it yourself divorce situations that you obtain current statements for each and every account that you and your spouse have, whether the account is in one or both names. In a do it yourself divorce situation, you and your spouse should be on good enough terms that you share this information with one another. All of this information must be listed on a financial affidavit and both parties must sign under oath that they have provided full disclosure to one another of all assets and liabilities and that the information provided is truthful and accurate. You will need this information to decide how you are going to divide your assets and liabilities.
Once you have a Florida financial affidavit and all information about your assets and liabilities, questions may arise. Is an asset or liability marital or nonmarital? How do you split credit card debt? What happens with a retirement account that began before the marriage? What about pensions and profit sharing? A divorce lawyer can advise you about whether an asset or liability is marital or non marital. This is one of the things that should be addressed in your initial divorce consultation. Credit card debt can be a tricky issue if both parties names are on a specific credit card and the debt is to be split. In a do it yourself divorce situation, you need to think about how you are going to divide this debt and how you will protect yourself and your credit if your spouse does not pay his or her share. When it comes to retirement accounts and pensions, you may want to consider hiring a financial professional to perform a valuation of the account, pension or profit sharing. You should also speak with your divorce lawyer about your obligation to divide these assets or your rights to a portion of these assets.
The Florida financial affidavit also requires that both parties list their incomes. What happens if you do not know your monthly income? This is a common question for business owners or those who are paid by commissions. In those situations, it is important to speak with a financial professional, such as an accountant, to get advise regarding how to calculate your monthly income. If you have questions about how much your spouse earns, you should address these questions with a divorce lawyer or an accountant.
These are just a few examples of questions and issues that may arise during the do it yourself divorce process. The financial portion of a divorce may be the most challenging aspect in the do it yourself divorce process. The important thing to keep in mind is that many decisions you make in this part of the process may be binding and non-modifiable so it is crucial that all of your questions are answered before you proceed. If you have questions or concerns about these or other financial aspects of your divorce, speak with your divorce lawyer or accountant before making any decisions about dividing property, assets and liabilities.
Florida divorce law requires that parties getting divorce file financial affidavits and list all of their assets and liabilities. In order to draft a complete Marital Settlement Agreement, you need to know everything you own and everything you owe. This would include all bank accounts, credit card statements and retirement accounts. It is highly recommended in do it yourself divorce situations that you obtain current statements for each and every account that you and your spouse have, whether the account is in one or both names. In a do it yourself divorce situation, you and your spouse should be on good enough terms that you share this information with one another. All of this information must be listed on a financial affidavit and both parties must sign under oath that they have provided full disclosure to one another of all assets and liabilities and that the information provided is truthful and accurate. You will need this information to decide how you are going to divide your assets and liabilities.
Once you have a Florida financial affidavit and all information about your assets and liabilities, questions may arise. Is an asset or liability marital or nonmarital? How do you split credit card debt? What happens with a retirement account that began before the marriage? What about pensions and profit sharing? A divorce lawyer can advise you about whether an asset or liability is marital or non marital. This is one of the things that should be addressed in your initial divorce consultation. Credit card debt can be a tricky issue if both parties names are on a specific credit card and the debt is to be split. In a do it yourself divorce situation, you need to think about how you are going to divide this debt and how you will protect yourself and your credit if your spouse does not pay his or her share. When it comes to retirement accounts and pensions, you may want to consider hiring a financial professional to perform a valuation of the account, pension or profit sharing. You should also speak with your divorce lawyer about your obligation to divide these assets or your rights to a portion of these assets.
The Florida financial affidavit also requires that both parties list their incomes. What happens if you do not know your monthly income? This is a common question for business owners or those who are paid by commissions. In those situations, it is important to speak with a financial professional, such as an accountant, to get advise regarding how to calculate your monthly income. If you have questions about how much your spouse earns, you should address these questions with a divorce lawyer or an accountant.
These are just a few examples of questions and issues that may arise during the do it yourself divorce process. The financial portion of a divorce may be the most challenging aspect in the do it yourself divorce process. The important thing to keep in mind is that many decisions you make in this part of the process may be binding and non-modifiable so it is crucial that all of your questions are answered before you proceed. If you have questions or concerns about these or other financial aspects of your divorce, speak with your divorce lawyer or accountant before making any decisions about dividing property, assets and liabilities.
Do it yourself Divorce Part One: Know Before You Begin
Do-it-yourself divorce is becoming more popular these days, especially among those who feel that they can’t afford to divorce. Many divorcing couples also fear that hiring divorce lawyers will lead to emotional and costly battles over children, property and finances, so they are opting for the do it yourself divorce. There are a wide range of options for DIY divorce, including using an online divorce service, obtaining a large pile of divorce forms from the Clerk’s office, mediation or hiring a divorce lawyer to draft or review a Marital Settlement Agreement. The DIY divorce may not work for many, but it also may be the only financially feasible option for those who cannot afford to divorce. No article can take the place of legal advice- but this five part series will give some tips for the do-it-yourself divorce process.
Before embarking on a do-it-yourself divorce, it is important to know what the issues are and what you can and should expect in terms of timesharing, support (child support and alimony, if it applies) and dividing property and liabilities. It is highly encouraged that the first step should be to consult with a divorce attorney. While this is the step that most do it yourself divorce seekers want to avoid, it is crucial to have an understanding of divorce law and your rights. Too many times people in do it yourself divorce situations enter into a settlement agreement and forget to include things only to find out later that either they have waived their rights or that they will now have to spend even more money clarifying their Marital Settlement Agreement. A free divorce consultation may sound tempting, but will likely be a brief meeting with little information provided about how to go forward with the divorce process. It is recommended that you have a thorough initial consultation with a divorce attorney to discuss your children, proposed timesharing, your income, assets and liabilities. During this initial divorce consultation, a divorce lawyer can give you suggestions on how to divide property, calculate child support and divide assets. A divorce lawyer can also discuss with you the information you need to gather in order to make decisions as well as the potential problems that may arise. The cost of an initial divorce consultation may be a small price to pay considering what is at stake.
During an initial divorce consultation, there are several items that must be addressed. If you have children, your divorce lawyer should explain to you the changes in Florida law regarding parenting plans and time sharing. Florida law now requires a parenting plan in all divorce cases, so your do it yourself divorce plan should take this into consideration. You can also discuss with your divorce attorney whether or not to include extras such as college tuition and extracurricular activities. During the initial divorce consultation, your divorce attorney can also review the particulars of your financial situation, especially the big concern for most do it yourself divorce seekers, which is the residence. Your divorce lawyer can discuss with you whether you should keep your house or sell it, who will live in the house until it is is sold and how you will pay not only the monthly bills but any expenses and repairs that arise. In order to have a complete Marital Settlement Agreement, you need to be aware of these concerns.
These are just a few of the concerns you need to discuss with a divorce lawyer. There may be more depending on your specific situation. In the next article, I will discuss how to become familiar with your financial situation and how to deal with questions about assets, liabilities and income.
The information included in this article has been prepared by Lori Barkus, Esq. for information purposes only and is not intended to be a substitute for legal advise from your own legal counsel. Transmission of such information is not intended to create, and receipt does not constitute, an attorney-client relationship between Lori Barkus, Esq. and the receiver. No information in this article should be acted upon any person, entity or firm without first obtaining proper legal advise. Please feel free to contact us for a free case evaluation. However, be advised that the act of sending electronic mail or any telephone communication with Lori Barkus, Esq. or Lori Barkus P.A. does not in and of itself create an attorney-client relationship.
The hiring of a lawyer is an important decision that should not be based solely upon advertisements or articles written by the attorney. Before you decide, ask us to send you free written information about our qualifications and experience.
Before embarking on a do-it-yourself divorce, it is important to know what the issues are and what you can and should expect in terms of timesharing, support (child support and alimony, if it applies) and dividing property and liabilities. It is highly encouraged that the first step should be to consult with a divorce attorney. While this is the step that most do it yourself divorce seekers want to avoid, it is crucial to have an understanding of divorce law and your rights. Too many times people in do it yourself divorce situations enter into a settlement agreement and forget to include things only to find out later that either they have waived their rights or that they will now have to spend even more money clarifying their Marital Settlement Agreement. A free divorce consultation may sound tempting, but will likely be a brief meeting with little information provided about how to go forward with the divorce process. It is recommended that you have a thorough initial consultation with a divorce attorney to discuss your children, proposed timesharing, your income, assets and liabilities. During this initial divorce consultation, a divorce lawyer can give you suggestions on how to divide property, calculate child support and divide assets. A divorce lawyer can also discuss with you the information you need to gather in order to make decisions as well as the potential problems that may arise. The cost of an initial divorce consultation may be a small price to pay considering what is at stake.
During an initial divorce consultation, there are several items that must be addressed. If you have children, your divorce lawyer should explain to you the changes in Florida law regarding parenting plans and time sharing. Florida law now requires a parenting plan in all divorce cases, so your do it yourself divorce plan should take this into consideration. You can also discuss with your divorce attorney whether or not to include extras such as college tuition and extracurricular activities. During the initial divorce consultation, your divorce attorney can also review the particulars of your financial situation, especially the big concern for most do it yourself divorce seekers, which is the residence. Your divorce lawyer can discuss with you whether you should keep your house or sell it, who will live in the house until it is is sold and how you will pay not only the monthly bills but any expenses and repairs that arise. In order to have a complete Marital Settlement Agreement, you need to be aware of these concerns.
These are just a few of the concerns you need to discuss with a divorce lawyer. There may be more depending on your specific situation. In the next article, I will discuss how to become familiar with your financial situation and how to deal with questions about assets, liabilities and income.
The information included in this article has been prepared by Lori Barkus, Esq. for information purposes only and is not intended to be a substitute for legal advise from your own legal counsel. Transmission of such information is not intended to create, and receipt does not constitute, an attorney-client relationship between Lori Barkus, Esq. and the receiver. No information in this article should be acted upon any person, entity or firm without first obtaining proper legal advise. Please feel free to contact us for a free case evaluation. However, be advised that the act of sending electronic mail or any telephone communication with Lori Barkus, Esq. or Lori Barkus P.A. does not in and of itself create an attorney-client relationship.
The hiring of a lawyer is an important decision that should not be based solely upon advertisements or articles written by the attorney. Before you decide, ask us to send you free written information about our qualifications and experience.
Tuesday, June 16, 2009
Facebook and divorce: How to Twitter, post and status update your way into family law peril
A recent article in Time Magazine about Facebook and divorce reported some not too surprising findings about how a divorcing party’s facebook posts lead to further legal troubles. (http://www.time.com/time/magazine/article/0,9171,1904147,00.html?cnn=yes)
It is a common practice to post details of one’s life on a website such as Facebook or Myspace along with personal information such as relationship status, photos and, apparently, comments about divorce proceedings. What divorcing posters (and postees- those who are being posted about, that is) need to keep in mind is that this public information may find its way in front of the judge who will decide how you share time with your children, how support will be paid and what assets and liabilities need to be divided.
During the high emotion throes of a divorce, it may be tempting to update your facebook status with a rant about what a bad person your soon to be ex is or to send a post into Twitter cyberspace notifying all interested and non-interested persons of this information. But, before doing so, keep in mind that, if it can be seen by the public, it can be printed by your spouses attorney. For those of you thinking, so what, bear in mind that the Judge deciding who will promote the relationship between the children and the other parent is likely not to see this as harmless venting. This is especially true where there are children who are old enough to access a computer and savvy enough (as more and more young children are these days) to search and find such posts. Venting and losing your cool during an emotionally stressful situation are understandable; posting your thoughts on a medium where they will be around for eternity and accessible to your children are not, at least not from the point of view of the person who may be called upon to preside over this aspect of your life.
What about the rest of the picture? It might be harder to convince a judge that you cannot pay that large amount of support when you are “tagged” in photos from a recent vacation or that there are no assets to divide when you inform the cyber-world of your recent purchase of a boat, motorcycle or car or that you didn’t commit marital waste (spend marital funds on another person or relationship) when there are photos of you and a significant other at a restaurant, out on the town or on that vacation mentioned above.
The bottom line is that what’s posted on the internet does not always stay on the internet. And, even if none of this surfaces in a divorce proceeding, your children may find it.
It is a common practice to post details of one’s life on a website such as Facebook or Myspace along with personal information such as relationship status, photos and, apparently, comments about divorce proceedings. What divorcing posters (and postees- those who are being posted about, that is) need to keep in mind is that this public information may find its way in front of the judge who will decide how you share time with your children, how support will be paid and what assets and liabilities need to be divided.
During the high emotion throes of a divorce, it may be tempting to update your facebook status with a rant about what a bad person your soon to be ex is or to send a post into Twitter cyberspace notifying all interested and non-interested persons of this information. But, before doing so, keep in mind that, if it can be seen by the public, it can be printed by your spouses attorney. For those of you thinking, so what, bear in mind that the Judge deciding who will promote the relationship between the children and the other parent is likely not to see this as harmless venting. This is especially true where there are children who are old enough to access a computer and savvy enough (as more and more young children are these days) to search and find such posts. Venting and losing your cool during an emotionally stressful situation are understandable; posting your thoughts on a medium where they will be around for eternity and accessible to your children are not, at least not from the point of view of the person who may be called upon to preside over this aspect of your life.
What about the rest of the picture? It might be harder to convince a judge that you cannot pay that large amount of support when you are “tagged” in photos from a recent vacation or that there are no assets to divide when you inform the cyber-world of your recent purchase of a boat, motorcycle or car or that you didn’t commit marital waste (spend marital funds on another person or relationship) when there are photos of you and a significant other at a restaurant, out on the town or on that vacation mentioned above.
The bottom line is that what’s posted on the internet does not always stay on the internet. And, even if none of this surfaces in a divorce proceeding, your children may find it.
Friday, May 29, 2009
The myth of 50/50 timesharing
Since the passing of the new parenting bill, many have believed that Florida is now a 50/50 time sharing state. While the words "custodial" and/or "primary residential" parent are no longer used, this does not mean that children will spend equal time with each parent in each and every case.
First, Nothing in the Florida law says that there is to be equal time with each parent. Instead, the law makes it clear that timesharing is to be determined based upon the unique circumstances of each and every family. There are several factors which judges need to review in order to make this decision, including, the amount of time each parent spends with the children and the amount of involvement in specific parenting tasks. The simple statement by a parent that he or she wants 50/50 timesharing simply is not enough.
Second, as most of us recognize, there simply cannot be a "one size fits all" approach to parenting. What works for one family may not work for another. It is also important to keep in mind that the standard is what is in the best interest of the child. Although this would seem to be on everyone's mind, those that fight to divide their children's time to be exactly equal may be ignoring the wants and needs of the particular child or children. How much time a child spends with either parent depends on the age of the child, the activities of the child and other factors. This does not mean, and judge would appear to agree, that it is always in the children's best interest to spend only alternating weekends with one parent either. The bottom line is that any parenting plan and timesharing schedule needs to be tailored to the particular family, with special consideration to the needs of the children involved
First, Nothing in the Florida law says that there is to be equal time with each parent. Instead, the law makes it clear that timesharing is to be determined based upon the unique circumstances of each and every family. There are several factors which judges need to review in order to make this decision, including, the amount of time each parent spends with the children and the amount of involvement in specific parenting tasks. The simple statement by a parent that he or she wants 50/50 timesharing simply is not enough.
Second, as most of us recognize, there simply cannot be a "one size fits all" approach to parenting. What works for one family may not work for another. It is also important to keep in mind that the standard is what is in the best interest of the child. Although this would seem to be on everyone's mind, those that fight to divide their children's time to be exactly equal may be ignoring the wants and needs of the particular child or children. How much time a child spends with either parent depends on the age of the child, the activities of the child and other factors. This does not mean, and judge would appear to agree, that it is always in the children's best interest to spend only alternating weekends with one parent either. The bottom line is that any parenting plan and timesharing schedule needs to be tailored to the particular family, with special consideration to the needs of the children involved
Thursday, May 14, 2009
The pitfalls of paternity
Unmarried couples having children has become more common. While parents have many of the same rights they would have if they were married, enforcing these rights is more difficult, especially if paternity has not been established. The following are a few examples of things that mom and dad should take into consideration:
1. Establishing paternity: If dad's name is on the birth certificate, there is a presumption of paternity. However, for visitation and child support purposes, additional steps need to be taken before support is awarded or visitation is established.
2. Moving away: This is one of the most common reasons why people contact my office. Mom and dad are no longer together and the person with whom the child lives wishes to move away, or, in some cases, simply packs up and leaves. Without a court order on paternity, the parent seeking to prevent the move may face even greater obstacles.
3. Child support: Many moms and dads tend to forget that a child support obligation begins at the child's birth (although, in certain situations, dad can be held responsible for some of mom's medical expenses while pregnant). This means that, if there is an action brought for child support when the child is, say, 6 years old, retroactive support will be awarded for the prior 6 year period, with credits allowed for payments to the parent seeking support that can be proven.
The above are just a few examples of the pitfalls of paternity. Anyone- whether mom or dad- who has a child with an unmarried partner and who has questions about their rights and responsibilities, is encouraged to contact an attorney to find out more information.
1. Establishing paternity: If dad's name is on the birth certificate, there is a presumption of paternity. However, for visitation and child support purposes, additional steps need to be taken before support is awarded or visitation is established.
2. Moving away: This is one of the most common reasons why people contact my office. Mom and dad are no longer together and the person with whom the child lives wishes to move away, or, in some cases, simply packs up and leaves. Without a court order on paternity, the parent seeking to prevent the move may face even greater obstacles.
3. Child support: Many moms and dads tend to forget that a child support obligation begins at the child's birth (although, in certain situations, dad can be held responsible for some of mom's medical expenses while pregnant). This means that, if there is an action brought for child support when the child is, say, 6 years old, retroactive support will be awarded for the prior 6 year period, with credits allowed for payments to the parent seeking support that can be proven.
The above are just a few examples of the pitfalls of paternity. Anyone- whether mom or dad- who has a child with an unmarried partner and who has questions about their rights and responsibilities, is encouraged to contact an attorney to find out more information.
Tuesday, April 28, 2009
Florida divorce filing fees to increase- up to $2,000
In July, 2008, the legislature approved an increase in filing fees in family law matters. The cost of filing for divorce went up to $409. But, much like the airlines, add on fees applied. There is now a $10 fee for a summons to serve the other party and a fee of $295 to file a counterpetition. But the proposed bill will increase these fees above what many might be able to afford.
The proposed legislation calls for an increase in filing fees based on the "contested value" of a case, including family matters. In a divorce, the "contested value" presumably means the couples assets, such as the house, the retirement accounts, etc. In cases where the "contested value" is $250,000 and up, the filing fee would increase to $2,000. For those with assets of $50,000 but less than $250,000, the filing fee will increase to $1,000. This might give those whose homes have declined in value a reason to celebrate.
The legislature is clearly aware that many people, in these economically strapped times, have decided to postpone getting a divorce. If this little publicized piece of legislation were to go into effect, those who are waiting to do the inevitable may face quite a surprise at the time of filing.
The proposed legislation calls for an increase in filing fees based on the "contested value" of a case, including family matters. In a divorce, the "contested value" presumably means the couples assets, such as the house, the retirement accounts, etc. In cases where the "contested value" is $250,000 and up, the filing fee would increase to $2,000. For those with assets of $50,000 but less than $250,000, the filing fee will increase to $1,000. This might give those whose homes have declined in value a reason to celebrate.
The legislature is clearly aware that many people, in these economically strapped times, have decided to postpone getting a divorce. If this little publicized piece of legislation were to go into effect, those who are waiting to do the inevitable may face quite a surprise at the time of filing.
Wednesday, March 11, 2009
Yours, Mine and Ours
One of the most popular misconceptions I hear is about separate accounts. Many people seem to believe that by simply placing an account in their own name, it is non-marital property. I also hear the same rationale for debts, especially credit card debts. Many people seem to believe that, if a credit card is in the name of one spouse only, that debt belongs to that spouse. This is not always the case.
Under Florida law, a marital asset is anything acquired or enhanced during the marriage regardless of how it is titled. Basically, every dollar earned during a marriage belongs equally to both parties. If one spouse has a separate account and deposits his/her paycheck that was earned while the parties are married into that account, the account now has marital funds. Even if the account was opened prior to the marriage and was, at one time, a non marital asset, there is now an issue with commingling of the funds in that account. The same may be true for retirement accounts.
When it comes to credit card debt, just as money earned during the marriage belongs to both parties equally, debts that were acquired during the marriage are the equal burden of the parties. At least, this is the starting presumption. There are several factors that can affect whether the debt is marital and how it should be divided, and paid for, especially when it is in the name of one party and not both. And it is also important to keep in mind that, even if a Court Order or settlement agreement states that a party is responsible for a debt, this will not stop a creditor or collection agency from collecting from the party whose name is attached to the debt. If the debt cannot be transferred to the party who will be responsible for it, there must be some safeguard in place to protect the party holding the debt in case the other party does not pay.
The above is intended for general information purposes only and should not be considered legal advice. It is highly recommended to consult with an attorney before making any decisions or signing any settlement regarding the division of assets or liabilities.
Under Florida law, a marital asset is anything acquired or enhanced during the marriage regardless of how it is titled. Basically, every dollar earned during a marriage belongs equally to both parties. If one spouse has a separate account and deposits his/her paycheck that was earned while the parties are married into that account, the account now has marital funds. Even if the account was opened prior to the marriage and was, at one time, a non marital asset, there is now an issue with commingling of the funds in that account. The same may be true for retirement accounts.
When it comes to credit card debt, just as money earned during the marriage belongs to both parties equally, debts that were acquired during the marriage are the equal burden of the parties. At least, this is the starting presumption. There are several factors that can affect whether the debt is marital and how it should be divided, and paid for, especially when it is in the name of one party and not both. And it is also important to keep in mind that, even if a Court Order or settlement agreement states that a party is responsible for a debt, this will not stop a creditor or collection agency from collecting from the party whose name is attached to the debt. If the debt cannot be transferred to the party who will be responsible for it, there must be some safeguard in place to protect the party holding the debt in case the other party does not pay.
The above is intended for general information purposes only and should not be considered legal advice. It is highly recommended to consult with an attorney before making any decisions or signing any settlement regarding the division of assets or liabilities.
Monday, February 2, 2009
Should I stay or should I go?
At times, divorce attorneys are asked by clients whether the client should end his/her marriage. Although I will discuss the legal and financial consequences of either decision. I do not believe this is a question an attorney should answer. Instead, I tell clients that this is an extremely personal decision that only they or their spouse can make. I also suggest speaking to a mental health professional.
The following is an article written by such a professional, reprinted with permission by Divorce magazine.
Knowing If You Should Stay or Go
by Susan Pease Gadoua, LCSW
While there are no quick, easy answers and no "one size fits all" reasons to offer, I will give you parameters within which to gauge whether or not you should remain married to your spouse or leave. I can't give you your answer. I can only guide you to find your truth for this moment. Your part will be to follow along and read with honest introspection so you can identify your answer.
When I meet for the first time with a client who is considering divorce, I can often get a sense of whether the scales are tipped toward staying or leaving from the reason he or she gives for wanting to stay married.
If the desire to stay married is based on moving toward a goal, the person is more likely to stay married; for example, "I want to raise my children in one house with two parents" or "I want to work on my anger issues and get on the other side of them."
On the other hand, when people explain that they are staying in the marriage to avoid pain or fear, this indicates that the marriage hasn't much glue, and such marriages aren't as likely to endure; for instance, "I'm staying because I'm afraid of not seeing my children every day," "I don't know how I'd make ends meet without my spouse," or "No one will ever love me like this again."
Once I hear the reasoning for staying in the marriage, I ask why the client might want to get a divorce. The same rule applies: those who are contemplating leaving to move toward a goal are more likely to actually leave than those who are averting pain or potential consequences. Examples of going toward a goal or away from a fear are "I want more out of life than staying in an unhappy marriage" or "I need to get away from this abuse."
Even though all of these reasons have merit and sound powerful, you may wonder how I know that the person who is moving toward a goal will more likely take action than the one who is running away from or trying to avoid pain. The answer is simple: fear.
Those who are motivated primarily by avoiding pain are usually fear-based people. These people see the world through the eyes of whatever problems and negative repercussions might arise from their actions. They are often imprisoned by their fears, not only as they pertain to deciding whether to stay in or leave their marriages, but in all areas of their lives. These people will more likely stay small, unhappy, and unfulfilled with the thought that they will remain safe.
Action-based people have the opposite view of the world. When they set their sights on a goal, they see what opportunities and benefits might come from moving forward. These people are more willing to take risks and go for what they want. They will also less likely settle for less than what they believe they deserve.
Of course, you can be partially both fear- and action-based, but whichever mode is dominant will usually win the arguments in your mind about whether to stay or go. The good news is that these aspects are not necessarily set in stone. If you are primarily a fear-based person but would rather be action-based, you can push through your fears and accomplish your goals. Most people need some training or support to make these changes, but it is an alteration that anyone can make.
In addition to examining fear-avoidant versus goal-oriented behaviors in the decision-making process, I look at whose needs are driving the decision. In a decision as big as whether or not to stay married, it is imperative that you consider the possible ramifications your leaving may have on others, but you must also balance that with your own needs. Where I see people go wrong in such a decision is when they forgo their own needs and focus primarily on meeting the needs of their spouses or children, or, on the contrary, they consider only their own needs and ignore the potential impact on their children and spouses.
I've had countless clients tell me that they don't want to divorce because they are afraid of losing the co-parenting relationship or their spouse's income, only eventually to realize that they alone already carry the load of responsibilities. The spouse doesn't contribute to the marriage but, rather, takes from it.
On awakening to this fact and confirming that they had done everything possible to improve their relationships, most of these clients immediately filed the divorce paperwork. And for almost all of these folks, letting go of the unhealthy relationship was the best decision they'd ever made. Rather than becoming harder, life actually got much easier, because they no longer had the added burden of taking care of the people who were supposed to be their partners or dealing with the many negative emotions their spouses elicited from them. What they had feared prior to taking action never manifested. They realized that they had postponed their own fulfillment and happiness for months, sometimes years.
The Workability Factors
There are certain factors that suggest a relationship is workable and salvageable. There are other factors in marriages that, if present, indicate a low probability that the relationship will ever be healthy or fulfilling. I call these the workability factors.
If both parties are willing to put in the work that the marriage requires, the chances of the problems and issues being resolved increase dramatically. However, even when both spouses want the marriage to last, there are some situations that lack enough of the necessary ingredients to keep it afloat.
The marital hierarchy of needs consists of five levels of needs: survival, safety, love, esteem, and actualization. The workability factors are really only pertinent to the three middle-level needs -- safety, love, and esteem needs -- because if a marriage has descended to survival mode, it is, by definition, not a workable situation. On the other hand, if a marriage operates at the actualization level, it is a highly functioning marriage, whose lower-level needs are met.
--------------------------------------------------------------------------------
Susan Pease Gadoua, LCSW is founder and executive director of the Transition Institute of Marin, an agency that provides coaching, therapy, and workshops to people who are at some stage of marital dissolution, in the greater San Francisco Bay Area. This article has been edited and excerpted with permission from Contemplating Divorce: A Step-by-Step Guide to Deciding Whether to Stay or Go (New Harbinger Publications, 2008).
The following is an article written by such a professional, reprinted with permission by Divorce magazine.
Knowing If You Should Stay or Go
by Susan Pease Gadoua, LCSW
While there are no quick, easy answers and no "one size fits all" reasons to offer, I will give you parameters within which to gauge whether or not you should remain married to your spouse or leave. I can't give you your answer. I can only guide you to find your truth for this moment. Your part will be to follow along and read with honest introspection so you can identify your answer.
When I meet for the first time with a client who is considering divorce, I can often get a sense of whether the scales are tipped toward staying or leaving from the reason he or she gives for wanting to stay married.
If the desire to stay married is based on moving toward a goal, the person is more likely to stay married; for example, "I want to raise my children in one house with two parents" or "I want to work on my anger issues and get on the other side of them."
On the other hand, when people explain that they are staying in the marriage to avoid pain or fear, this indicates that the marriage hasn't much glue, and such marriages aren't as likely to endure; for instance, "I'm staying because I'm afraid of not seeing my children every day," "I don't know how I'd make ends meet without my spouse," or "No one will ever love me like this again."
Once I hear the reasoning for staying in the marriage, I ask why the client might want to get a divorce. The same rule applies: those who are contemplating leaving to move toward a goal are more likely to actually leave than those who are averting pain or potential consequences. Examples of going toward a goal or away from a fear are "I want more out of life than staying in an unhappy marriage" or "I need to get away from this abuse."
Even though all of these reasons have merit and sound powerful, you may wonder how I know that the person who is moving toward a goal will more likely take action than the one who is running away from or trying to avoid pain. The answer is simple: fear.
Those who are motivated primarily by avoiding pain are usually fear-based people. These people see the world through the eyes of whatever problems and negative repercussions might arise from their actions. They are often imprisoned by their fears, not only as they pertain to deciding whether to stay in or leave their marriages, but in all areas of their lives. These people will more likely stay small, unhappy, and unfulfilled with the thought that they will remain safe.
Action-based people have the opposite view of the world. When they set their sights on a goal, they see what opportunities and benefits might come from moving forward. These people are more willing to take risks and go for what they want. They will also less likely settle for less than what they believe they deserve.
Of course, you can be partially both fear- and action-based, but whichever mode is dominant will usually win the arguments in your mind about whether to stay or go. The good news is that these aspects are not necessarily set in stone. If you are primarily a fear-based person but would rather be action-based, you can push through your fears and accomplish your goals. Most people need some training or support to make these changes, but it is an alteration that anyone can make.
In addition to examining fear-avoidant versus goal-oriented behaviors in the decision-making process, I look at whose needs are driving the decision. In a decision as big as whether or not to stay married, it is imperative that you consider the possible ramifications your leaving may have on others, but you must also balance that with your own needs. Where I see people go wrong in such a decision is when they forgo their own needs and focus primarily on meeting the needs of their spouses or children, or, on the contrary, they consider only their own needs and ignore the potential impact on their children and spouses.
I've had countless clients tell me that they don't want to divorce because they are afraid of losing the co-parenting relationship or their spouse's income, only eventually to realize that they alone already carry the load of responsibilities. The spouse doesn't contribute to the marriage but, rather, takes from it.
On awakening to this fact and confirming that they had done everything possible to improve their relationships, most of these clients immediately filed the divorce paperwork. And for almost all of these folks, letting go of the unhealthy relationship was the best decision they'd ever made. Rather than becoming harder, life actually got much easier, because they no longer had the added burden of taking care of the people who were supposed to be their partners or dealing with the many negative emotions their spouses elicited from them. What they had feared prior to taking action never manifested. They realized that they had postponed their own fulfillment and happiness for months, sometimes years.
The Workability Factors
There are certain factors that suggest a relationship is workable and salvageable. There are other factors in marriages that, if present, indicate a low probability that the relationship will ever be healthy or fulfilling. I call these the workability factors.
If both parties are willing to put in the work that the marriage requires, the chances of the problems and issues being resolved increase dramatically. However, even when both spouses want the marriage to last, there are some situations that lack enough of the necessary ingredients to keep it afloat.
The marital hierarchy of needs consists of five levels of needs: survival, safety, love, esteem, and actualization. The workability factors are really only pertinent to the three middle-level needs -- safety, love, and esteem needs -- because if a marriage has descended to survival mode, it is, by definition, not a workable situation. On the other hand, if a marriage operates at the actualization level, it is a highly functioning marriage, whose lower-level needs are met.
--------------------------------------------------------------------------------
Susan Pease Gadoua, LCSW is founder and executive director of the Transition Institute of Marin, an agency that provides coaching, therapy, and workshops to people who are at some stage of marital dissolution, in the greater San Francisco Bay Area. This article has been edited and excerpted with permission from Contemplating Divorce: A Step-by-Step Guide to Deciding Whether to Stay or Go (New Harbinger Publications, 2008).
Sunday, January 18, 2009
Divorcing when times are tough
Its no secret that money is one of the biggest stressors and topic of frequent arguments. In the present economy, most people are concerned about, if not completely frightened over, their financial situation. Concern leads to fighting and, in unions which were already rocky, the present economic woes are enough to bring things to an end. But, with layoffs happening or looming, houses not selling and their values decreasing more and more each month, many people are becoming stuck between wanting to end their marriages and not being financially able to do so. More and more couples find themselves in this situation. And the frequently asked question is: what do you do when you can't afford to divorce?
The first step is to figure out where you are financially. I advise clients to write out their monthly financial expenses and figure out their present monthly need. Once you have that information, you are in a much better place to make decisions. The next step is to separate the fixed expenses such as monthly mortgage and taxes from the discretionary ones such as cable and cleaning service and figure out which can be reduced and which can be eliminated altogether. This gets you to the actual bottom line amount needed on a monthly basis.
For many people these days, it would be difficult or impossible to pay the monthly household expenses on one income, even with reducing or eliminating those expenses. If one person moves out, he or she now has to pay rent and utilities elsewhere, meaning that there is not enough money to go around. If this is the case, then asking or forcing your spouse to move out of the house immediately simply will not work.
In a previous post, I offered some suggestions for those who need to continue living together during and after divorce. In this post, I'll address more of the practicalities such as bill paying and separating finances. While it is easier to maintain a joint account, deposit all funds into that account and pay bills jointly, this situation may not work for some. It leads to disagreements about the discretionary spending of each party. Once a couple has separated, neither party wants their earnings to pay for the other parties meals out, shopping or other forms of entertainment. If a couple is going to be living together for an indefinite period of time, such as, until the house sells, a preferred course of action may be to split accounts rather than maintain completely joint funds. Both parties can pay the joint living expenses such as the mortgage and utilities and agreed upon children's expenses and can do so from a joint account. But personal charges and spending should be kept separate and paid from separate funds.
Another suggested course of action is to separate credit cards. Hopefully, each party has at least one credit card in their own name or enough credit history to open one. Removing each other as a signer from the credit cards in the name of the other may also be recommended. A joint credit card can be used to pay agreed joint expenses and separate cards can be used for each party's personal expenses.
Equity lines, if you still have one these days, should only be used by agreement and for joint expenses. Keep in mind that, if you file for divorce later on, or have already filed, you will have to account to your spouse, and vice versa, for any funds removed from an equity line. Withdrawing funds from an equity line without telling your spouse and/or using them to pay your separate debt and expenses will cost both of you in the long run. This will only create confusion, anger and more attorneys fees spent in determining how the funds were spent.
If you have a car with a high monthly payment, look into selling or trading it in, if possible. This may not be an option if you owe more than your car is worth. But if there is some equity, even a minimal amount, you may be able to lower this payment and reduce your monthly expenses.
If you own a house that neither of you can or want to maintain, consider your options carefully. Find out the present value of your home and the likelihood of it being sold. Ask a realtor for a list of recent sales of comparable homes and the selling prices. If you owe more than your home is worth, talk to a bank representative or other professional about your options.
Keep in mind that the above are only suggestions and not legal advice. Every situation is different and what works for one couple may not work for another. Before taking any steps to separate finances or reach an agreement with your spouse about how to pay bills and how much should be paid by either party, it is extremely important to seek the advice of a financial or legal professional.
The first step is to figure out where you are financially. I advise clients to write out their monthly financial expenses and figure out their present monthly need. Once you have that information, you are in a much better place to make decisions. The next step is to separate the fixed expenses such as monthly mortgage and taxes from the discretionary ones such as cable and cleaning service and figure out which can be reduced and which can be eliminated altogether. This gets you to the actual bottom line amount needed on a monthly basis.
For many people these days, it would be difficult or impossible to pay the monthly household expenses on one income, even with reducing or eliminating those expenses. If one person moves out, he or she now has to pay rent and utilities elsewhere, meaning that there is not enough money to go around. If this is the case, then asking or forcing your spouse to move out of the house immediately simply will not work.
In a previous post, I offered some suggestions for those who need to continue living together during and after divorce. In this post, I'll address more of the practicalities such as bill paying and separating finances. While it is easier to maintain a joint account, deposit all funds into that account and pay bills jointly, this situation may not work for some. It leads to disagreements about the discretionary spending of each party. Once a couple has separated, neither party wants their earnings to pay for the other parties meals out, shopping or other forms of entertainment. If a couple is going to be living together for an indefinite period of time, such as, until the house sells, a preferred course of action may be to split accounts rather than maintain completely joint funds. Both parties can pay the joint living expenses such as the mortgage and utilities and agreed upon children's expenses and can do so from a joint account. But personal charges and spending should be kept separate and paid from separate funds.
Another suggested course of action is to separate credit cards. Hopefully, each party has at least one credit card in their own name or enough credit history to open one. Removing each other as a signer from the credit cards in the name of the other may also be recommended. A joint credit card can be used to pay agreed joint expenses and separate cards can be used for each party's personal expenses.
Equity lines, if you still have one these days, should only be used by agreement and for joint expenses. Keep in mind that, if you file for divorce later on, or have already filed, you will have to account to your spouse, and vice versa, for any funds removed from an equity line. Withdrawing funds from an equity line without telling your spouse and/or using them to pay your separate debt and expenses will cost both of you in the long run. This will only create confusion, anger and more attorneys fees spent in determining how the funds were spent.
If you have a car with a high monthly payment, look into selling or trading it in, if possible. This may not be an option if you owe more than your car is worth. But if there is some equity, even a minimal amount, you may be able to lower this payment and reduce your monthly expenses.
If you own a house that neither of you can or want to maintain, consider your options carefully. Find out the present value of your home and the likelihood of it being sold. Ask a realtor for a list of recent sales of comparable homes and the selling prices. If you owe more than your home is worth, talk to a bank representative or other professional about your options.
Keep in mind that the above are only suggestions and not legal advice. Every situation is different and what works for one couple may not work for another. Before taking any steps to separate finances or reach an agreement with your spouse about how to pay bills and how much should be paid by either party, it is extremely important to seek the advice of a financial or legal professional.
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