2009 July | Mediation Blog

Archive for July, 2009

Alimony

Thursday, July 30th, 2009

Alimony, or spousal maintenance as it’s known in some states, is a legal mechanism by which the court acknowledges that two people make up a marriage partnership, and that the earning power of the two people is rarely equal. Sometimes one of those people sacrificed a career, education, or job track in order to fulfill an unpaid role in that partnership. In some cases, an injury or illness contributed to the lesser earning capacity of one of the two partners.

Alimony is not available in every state, with Texas being the forerunner in abolishing alimony. All states reserve the right to make asset divisions based (at least in part) on the earning capacity and future prospects of the spouses. Even if a state doesn’t allow alimony, it may allow other provisions in order to even out the spouses’ financial positions, i.e. no alimony but a larger share of the equity in the house or cash savings. For a good article highlighting frequently asked questions about alimony, see http://www.divorcesupport.com/divorce/Spousal-Support-1423.html.

Both men and women are entitled to alimony in those states which permit alimony awards. Alimony awards are not gender based, but rather, follow broad categories:

age
health, both mental and physical
education
income
future prospects for income and employment
separate property which may be used for support
the desirability of a parent not working for a length of time (e.g., when children are young)
length of the marriage
reasons for the breakdown of the marriage
contributions to the household, both monetary and non-monetary

Alimony is considered to be an income substitute. You need not have children to be entitled to alimony. It is determined based on both spouses’ incomes, the factors listed above, and a determination of the relative importance of each of the factors for each case. It’s therefore impossible to predict how much alimony may be awarded in a given case. Some jurisdictions have a rule of thumb, and experienced lawyers can give you an estimate of the amount you might receive. But unlike child support, which is determined by law, alimony is completely negotiable. Alimony typically ends upon the death of either the payor or the recipient, but all other details are subject to your own design. Some (mix and match) provisions which can be included:

alimony terminates upon the remarriage of the recipient
alimony terminates upon the cohabitation of the recipient with another adult under circumstances which are tantamount to remarriage, but without the ceremony
alimony terminates after a specific number of months or years
alimony is for a decreasing amount each year (subject to some tax rules), i.e., $15,000 the first year, $10,000 the second year, $5,000 the third year, and terminates after year three
alimony is not awarded at the time of the divorce but is an issue kept open for modification later if circumstances change
alimony is modifiable in the event of a substantial change in circumstances, or modifiable only under certain, pre-defined circumstances, such as a physical disability
alimony is not modifiable by either party for any reason
alimony is not modifiable unless either party’s income changes by a certain amount or percentage; e.g., to encourage a non-working spouse to begin working, alimony might be modifiable only if that spouse’s gross income exceeds $20,000 a year

Alimony thus can be tailored to fit many situations. In some cases, it may never terminate; in others, triggering events can be specified which will mark a termination. Think about what you want to accomplish through alimony, and then negotiate to tailor your plan to fit those needs. For a host of information on spousal alimony you may find helpful, see http://www.womansdivorce.com/spousal-alimony.html.

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

For more information contact Peace Talks www.peace-talks.com

Tags: Divorce Basics, Your Responsibilites, Your Rights
Posted in Alimony | Comments Off

Legal Issues During the Waiting Period

Tuesday, July 28th, 2009

During the waiting period, you begin to resolve each of the issues germane to divorce. You are thus working toward a fair settlement for the post-divorce period. Two categories of issues must be resolved: financials, and if you have children, issues related to legal custody and parenting arrangements.

Financials

alimony or spousal support
personal property
division of liquid assets: cash, stock, and bank accounts
division of retirement accounts and pensions, stock options and less liquid assets
whether or not to sell the house and other real estate
who will keep the house and other real estate if it is not to be sold
tax issues
child support, medical insurance, and tax exemptions for children

Parenting Related

legal custody and parenting schedules
special provisions concerning children: medical expenses, college, extracurricular activities, private school and the like

Considerations Before Settling

what do you believe is in the best interests of your children?
can you handle all of your new responsibilities?
have you considered all of the tax ramifications?
have you considered the mix of assets you’ll be receiving: liquid vs. non-liquid, and does the settlement meet your immediate needs?
does the settlement set you on the right path for your long term needs?
can you live with the proposed settlement, even though your not completely satisfied?
will a trial cost more emotionally and financially than what you hope to gain?
if you cannot settle, will what you’re fighting about matter in 5 years?

Agree upon what to tell family and friends so that there is no misunderstanding about what the living arrangement signifies.

Making sure you are prepared and know all your options will help things go much more smoothly for you and your family. Be sure to visit the Peace Talks resource center at

http://www.peace-talks.com/resources.php. For basic divorce information, see http://www.peace-talks.com/divorceinformation.php.

For more information contact Peace Talks www.peace-talks.com

Tags: Working with Your Spouse, Your Responsibilites, Your Rights
Posted in Legal Separation | Comments Off

Staying Together While Separated

Friday, July 24th, 2009

There are psychological and practical advantages and disadvantages to staying in the same house. The advantages include saving money, having time to organize your lives for an easier separation, having time to talk to your children, and providing support to each other on a daily basis. This way of living requires a friendly situation at best, or one in which tensions are squelched for your own or your children’s benefit. If your situation is not civil, however, it is complicated and painful to face each other every day and manage the ’good face’ that such arrangements require. Staying in a tension-filled living situation can exacerbate stress and magnify the ways in which spouses annoy and frustrate each other. For some tips on getting through living together during your separation and divorce, see http://get-divorce-advice.com/separated-but-living-together-how-to-get-through-it/.

Certain situations support separating sooner rather than later. If your spouse is continuously putting you down, berating you, abusing you, or manipulating you into being frightened, meek, or withdrawn from family and friends, then staying in the house is likely to have negative consequences for your children and for you. If your spouse is involved in illegal activities, or is self-destructive, such as a compulsive gambler or cheat, then staying can only have negative consequences unless you both get professional help. If your spouse has a disabling mental illness that causes him or her to act erratically in ways that could put you or your children in danger, that is a painful but potentially necessary reason for leaving. Finally, if your spouse is hurting your children in any way, then leaving immediately must be seriously considered.

Separating might be a temporary solution. Sometimes just taking this action breaks old patterns like taking each other for granted. It introduces fear, and provides an opportunity to experience what life will be like without each other. Is it relieving, barely noticed, or does it compel you to re-think all of your reasons for leaving? If you separate, you must stick with it long enough to pass through the immediate aftermath — the loneliness, demands, threats, promises for change, and bouts of intimacy that wreak havoc in the early separation period.

Ellen and Harry lived in the same home during their divorce process. Harry set up a bedroom in the basement, and the children moved freely between the two floors on which their parents lived. They each planned to stay out of the home on alternating evenings, so that they did not interact except when the children were asleep. Despite this plan, mounting tensions during the legal process were taking their toll, especially on Harry. He felt he did not have a real home, and that the children did not respect his being ’banished’ to the basement. Harry reported feeling depressed and anxious, to the point that he was not managing himself successfully in the workplace. He wondered if the money he was saving was worth it, and whether being with his children in this way ultimately undermined his relationship with them. For more legal separation tips, see http://www.womansdivorce.com/separation-advice.html.

For more information contact Peace Talks www.peace-talks.com

Tags: Divorce Basics, Your Responsibilites, Your Rights
Posted in Legal Separation | Comments Off

Mandatory Waiting Period

Wednesday, July 22nd, 2009

One of the most confusing and least understood parts of the legal process is the mandatory waiting period: what needs to happen, and what is the timing?

Most states specify a waiting period of between 3 and 12 months from the time you file the papers until your divorce can be finalized. For a list of the waiting periods, see http://www.totaldivorce.com/process/requirements/waiting-period.aspx. During this waiting period your lawyer will be pursuing financial discovery that is, assembling all of the financial documents that are relevant to your case (in addition to the documents you’ve already provided). Your lawyer should also be helping you to formulate a settlement proposal for resolving your case. By understanding the settlement process, you can help to guide your case to a successful ending.

Staying In or Leaving the House

Legally, many states permit couples to live together during their divorce. Other states, like New York, require a physical separation of a specific duration (New York is one year, most other states are 3 months to a year) before a divorce can be granted. All states permit separation during the divorce process. The question is whether a physical separation at this time makes sense for your family. Consider:

Your finances: will you be able to support two households right away?
The stability of your children: where will they live, and how will they get to see each parent?
Can you agree on who stays in the marital residence, or will this decision require court intervention?
Is there a potential for domestic violence, especially now that tensions are escalated?
Will both of you have adequate transportation and furnishings; e.g., are you sharing an automobile?

The most frequently asked legal question is: Is there a legal advantage to separating or staying in the same household? The answer to this question varies widely across jurisdictions and lawyers. Many lawyers subscribe to the old adage of “possession is 9/10ths of the law” and instruct their clients that if they hope to live in the house after the divorce is finalized, they should not move out of the house during the divorce. Similarly, if the client wishes to live with the children, the client should not move out without them. Even though orders made during the time the divorce case is pending are supposedly “without prejudice”, meaning that the court has the authority to change any orders at any time, the lawyers who subscribe to the “possession is 9/10ths of the law” school of thought believe otherwise. While no statistics are available to support or refute this theory, imagine such a scenario as presented to a judge: if the arrangement has stabilized the children and seems to be working, why risk a change? For a good article about some of the parenting challenges present during the separation period, see http://www.drheller.com/parenting_challenges.html.

For more information contact Peace Talks www.peace-talks.com

Tags: Divorce Basics, Your Responsibilites, Your Rights
Posted in Legal Issues | Comments Off

Serving Your Spouse Divorce Papers

Monday, July 20th, 2009

In order for the service of process to run smoothly, the sheriff needs to know how, when, and where to find your spouse. The more information you can give your lawyer and the sheriff about where to find your spouse, and the best time to find him or her, the easier it will be for the lawyer to get the papers served, thereby expediting your case and saving you money. The appendix contains a Sheriff Information Sheet which you may use as a guide for information to give the sheriff.

Give the sheriff a written schedule of where your spouse can be found. Include his or her home address and telephone number, and the days of the week and times he or she is ordinarily available. If you want the sheriff to serve your spouse at work, list his or her work address and telephone number as well as hours and days worked. If your spouse can be violent, or carries a gun, the sheriff needs to know that. If you suspect that your spouse will attempt to avoid service, the sheriff needs to know that too. If you don’t want the papers served during certain hours when the children are home, be specific in your instructions. If you need to be notified before service so that you can make sure you’re in a safe place when it happens, also let the sheriff know.

The sheriff will need a description of your spouse’s appearance: height, weight, hair color, race, whether your spouse has facial hair or wears glasses. Attach a photograph to the written description. The color, make and model of your spouse’s car is also helpful information, as is the license plate number.

Under certain circumstances, the sheriff may be able to simply leave the papers at your spouse’s house, as opposed to handing the papers to your spouse personally. Each trip that the sheriff makes costs you money, so make it as easy as possible for the sheriff to successfully serve your spouse. This can be a stressful time. Make sure you have all the information you need. Visit the Peace Talks resource center at http://www.peace-talks.com/resources.php. For another good article on being served with a divorce summons, see http://www.gitlin.com/pages/questions/qa_servedwithasummons.html.

For more information contact Peace Talks www.peace-talks.com

Tags: Divorce Basics, Working with Your Spouse
Posted in Filing for Divorce | Comments Off

Preparing Your Spouse to Receive Divorce Papers

Wednesday, July 15th, 2009

Although it may be very difficult for you to broach the subject of divorce with your spouse, if you have decided to file for a divorce it is best to let your spouse know in advance that the divorce papers are coming. Even when the marital relationship has gone awry, the spouse served is often shocked and upset when the papers finally arrive. Try and soften that blow to the extent you can. It may set the stage for how much you and your spouse will cooperate throughout the process. For a terrific article on serving divorce papers, see http://www.womansdivorce.com/how-to-serve-divorce-papers.html.

If, on the other hand, you feel that you may be in danger if your spouse knows in advance that the papers are coming, then make sure that your lawyer is aware of your fear. You will want to make sure that you are in a safe place when the papers are served. If your spouse becomes violent or threatening after the papers are served, call the police. Don’t take any chances. Call your lawyer after you have had a chance to get to someplace where you will be safe. Your lawyer can do little to remedy the immediate situation; that’s why it’s important to call the police first.

How to Serve the Papers

How you handle serving papers on your spouse can be instrumental in how the rest of your case progresses. Most sheriffs and process servers can arrange with your spouse to deliver the papers so that it is not unduly embarrassing. Your spouse will be able to meet the sheriff to receive the papers so that service can be as private and non-confrontational as possible.

Generally, receiving divorce papers is painful and scary. Expect some hurt feelings and angry words. If your spouse has been violent in the past or has started behaving erratically recently, consider having a phone handy to call 911 in the event that your spouse becomes a problem, or be prepared to file a temporary restraining order. At the very least, establish a “safe haven” in advance where you and your children can spend the night if your spouse becomes violent. These scenarios happen infrequently, yet you want to be prepared if you are at risk. To make sure you are prepared, be sure to visit the Peace Talks resource center at http://www.peace-talks.com/resources.php.

For more information contact Peace Talks www.peace-talks.com

Tags: Divorce Basics, Working with Your Spouse
Posted in Filing for Divorce | Comments Off

Living Together During or After Divorce

Monday, July 13th, 2009

The Wall Street Journal published an article today about staying together after you get divorced, or staying together while the divorce is going on.

http://online.wsj.com/article/SB124743668592229179.html

Nice idea, in principal. Right? It’s cheaper, you don’t have to worry about changing the kids’ schedules, you keep your same mailing address……

But what this article, and the similar article which appeared in the New York Times on December 30, 2008, failed to mention was that the time of separation and divorce can be a very difficult time for the participants. Even for families which are not involved in chronic domestic violence, it is not uncommon for there to be 1 or 2 isolated incidents of violence surrounding the decision to divorce.

Are we sure that’s worth the money?

A client called last week and said, “We got into a fight and [spouse] slapped me. I called the police, and the police arrested [spouse]. Now what do I do?” This same client had called the week before complaining that he/she didn’t see how their mediation could be completed for the average amount of fees which we quote clients. Now the cost of mediation is a drop in the bucket—-spouse had to be bailed out of jail, there’s a restraining order, and one or both spouses will need an attorney. I’ll bet that spouse is no longer interested in settling through mediation, so the new divorce lawyers will easily cost 3 times the amount of money that client was worried about just a week prior. And let’s not forget that all of this went down in front of the parties’ children.

So is it really about money? At this point, I fail to see the savings.

Likewise, the Los Angeles Times has a similar article in today’s paper:

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As a 20 year divorce professional (litigator turned mediator) I worry that in an effort to save a couple of bucks that people are putting themselves in danger. And if it’s not physical danger, per se, what about what the children are witnessing? Are these parents who are staying together really perfect role models for how adults should handle conflict? I sure hope so, but somehow I doubt it.

Let’s not forget that an overwhelming number of non-gang-related homocides are [former or current] romantic partners. Remember the fellow who dressed as Santa and killed half of his wife’s family last Christmas? He was her ex husband.

My observation of “I can’t afford it” is really “I don’t value it so I’m not going to spend money on it”. Remember when you shared an apartment with 2 other people in college? Or you clipped coupons to make ends meet because your first job paid $5 an hour?

Staying together in the same house while you’re getting divorced may work for some folks, but for those it does not work for, it is a disaster.

Posted in Conflict Management, Cost of Divorce, Creative Problem Solving, Divorce and Your House, Emotions During Divorce, Filing for Divorce, Legal Issues, Life After Divorce, Property Division | Comments Off

Filing for Divorce: Step by Step

Monday, July 13th, 2009

To illustrate the procedure of filing for divorce, let’s outline a typical case step by step:

Bill decided he wanted to file for a divorce from his wife, Anne. He contacted and retained an attorney who agreed to represent him. The attorney filled out the necessary forms, which stated that Bill and Anne were married July 20, 1990 in New Haven, Connecticut, that they’d each lived in Connecticut for more than a year, and Anne’s maiden name. It also stated that they have 3 children, Bill Jr., born December 1, 1992, Thomas, born July 5, 1993, and Julie, born September 21, 1995. The forms also stated that no one in the family received welfare assistance during the marriage, and that the marriage had broken down irretrievably (no fault divorce). Bill asked the court to divide their property fairly between the two of them, and for joint legal custody and visitation with the children. He filed a request for temporary orders requesting that visitation be established on an interim basis, since he had already moved out of the house. The attorney arranged to have Anne served with the papers, and when they were returned to the attorney after service, the attorney filed them with the court. This started the case.

Cynthia wanted to divorce her husband, Ted. Because she and Ted had no children and little property, she decided she would file the divorce Pro Se, without a lawyer. She purchased a book at the bookstore (oftentimes the courthouse clerk’s office can provide a list of Pro Se books available) titled How To Do Your Own Divorce in Minnesota and followed procedures as stated above. She filled out papers she picked up at the court, arranged with the sheriff service at the courthouse to have the papers served on Ted, and after they were served, she returned them to court with a check for the filing fee. Thus, her case was opened with the court.

Does it make a difference who files first?

In most cases, it doesn’t make any difference who files first for the divorce. Your rights are not compromised by the fact that you (or your spouse) filed the divorce papers. In the event of a trial, the person who files tells his/her side of the story first, which can be advantageous. Otherwise, it makes no difference who files the papers.

If you are the plaintiff and you change your mind about pursuing the divorce, you may stop the process at any time by filing papers to withdraw the case from court. If you are the defendant (your spouse has filed the divorce against you), you cannot withdraw the case without your spouse’s cooperation. In a “no fault” divorce, if the plaintiff represents to the court that the marriage has broken down without hope of reconciliation, the court will grant the divorce even if the other spouse wishes to remain married. For a host of free information about divorce, be sure to see the Peace Talks resource center at http://www.peace-talks.com/resources.php. For a list of terrific books about divorce, see http://www.peace-talks.com/books.php.

For more information contact Peace Talks www.peace-talks.com

Tags: Divorce Basics, Finding a Lawyer, Hiring a Lawyer, Working with Your Divorce Lawyer
Posted in Filing for Divorce | Comments Off

Casting Notice for Divorce TV Show

Friday, July 10th, 2009

This company is NOT affiliated with Peace Talks Mediation Services, but I thought I’d post this on the blog in case someone is interested:

Here’s the official Casting Notice:

Are you, or someone close to you recently divorced, or currently going through a divorce? Are you looking to pull together and improve your situation by moving forward? What kind of emotional toll is the breakup of your marriage taking on your home, work, and social life? Do you feel like people in your life – friends, family members – must take sides in your marital war? If divorce is affecting your life right now, we want to hear from you.

Producers are searching for divorced or divorcing couples to participate in a new show, both parties should be willing to share their story openly and honestly with the world. We are interested in private relationships which, for many complex reasons, have broken down. 2 adults who have already tried hard to hold onto their marriage, and are at the end of the road. There will be a focus on the positive side of life after the divorce is finalized. Please send photos, location, emails, phone numbers, and a summary of the relationship history to our casting department.

Thanks in advance for your time, and please feel free to pass my contact info and/or email to whomever you feel is appropriate.

Best,

Tracy Powell

Development Producer

Escalate TV

Cell: 407-284-7320

E: tracypowell@gmail.com

Posted in Conflict Management, Creative Problem Solving, Emotions During Divorce, Fault in Divorce, Life After Divorce | Comments Off

Filing for Divorce

Thursday, July 9th, 2009

Once you have everything in order, you can actually file for divorce. To begin, you need to file with the court. Basically, a set of forms need to be filled out, served on your spouse (or you, if your spouse is the one initiating the divorce), and returned to court with a filing fee. The filing fee varies, but is typically under $200 and can be waived by the court if you are unable to pay. You need to fill out a special fee waiver request at the courthouse if you wish to request that the fees be waived.

Typically, the forms require the date and place of your marriage, the wife’s maiden name, and if there are children, their names and dates of birth, and whether anyone in your immediate family receives welfare assistance. The papers also request information regarding how long you’ve lived in the state, and the grounds upon which you’re seeking a divorce, typically “irretrievable breakdown of the marriage” (no fault).

The person who files the initial papers is called the Plaintiff.
The recipient of the papers is the Defendant.

The forms also require you to state in general terms what orders you’d like the court to make. You need to indicate whether or not you’re requesting alimony, a property distribution, custody, joint custody or visitation, and a restoration of the wife’s maiden name (wife’s choice only). You don’t need to state specifically what you’re requesting, just the general categories. For excellent article, plans and checklists, see http://www.peace-talks.com/resources.php.

Along with the initial papers, you can file a request to have the court make initial orders concerning custody, visitation, support, alimony and use of certain items which belong to either or both of you. These orders are temporary, and last only as long as the divorce is pending. For excellent divorce information, see http://www.peace-talks.com/divorceinformation.php.

For more information contact Peace Talks www.peace-talks.com

Tags: Divorce Basics, Finding a Lawyer, Hiring a Lawyer, Working with Your Divorce Lawyer
Posted in Filing for Divorce | Comments Off

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Archive for July, 2009

Alimony

Legal Issues During the Waiting Period

Staying Together While Separated

Mandatory Waiting Period

Serving Your Spouse Divorce Papers

Preparing Your Spouse to Receive Divorce Papers

Living Together During or After Divorce

Filing for Divorce: Step by Step

Casting Notice for Divorce TV Show

Filing for Divorce