Archive for March, 2010

Make a New Friend When You Divorce

Monday, March 29th, 2010

Czar Peter the Great once said, “I don’t rule Russia. Ten thousand clerks rule Russia!” Well, in a divorce one clerk can make a great difference — the clerk of the court.

The clerk of the court is responsible for keeping court records and procedures in order. A person filing for divorce pro se or a divorce lawyer files divorce paperwork with the clerk of the courts in the 50 jurisdictions.

For the pro se filer in particular, the clerk of the court, who may be called the court assistant, district clerk or chancery clerk, is a man or woman who should become a new best friend.

The phase “divorce paperwork” includes a myriad of forms and papers that must filed in every divorce action, even the simplest uncontested default divorce cases. Starting with the complaint and summons and through the final divorce decree, the clerk of the court is the man or woman who keeps track that all the protocols and procedures have been followed.

The clerk will be involved right from the start. He or she is the person who gives the divorce a case number that stays with the action from start to finish.

The clerk moves each divorce through the formalities of the family court. In conjunction with the judge, the clerk will see that all paperwork filed in each case is prepared, organized, and presented properly for review. In all jurisdictions, the clerk is prohibited from answering legal questions, but many clerks can be most helpful in dealing with filing procedures.

The complexities of filing often bewilder pro se filers, but the clerk is the last person a pro se filer wants to cross.

It is the vitality of a marriage

Monday, March 15th, 2010

No one knows for sure of course, but probably as many marriages are wrecked by what someone does not do as by what someone does do. Anyone can see adultery assaults a marriage, but right up there, according to experts, is the failure to communicate. And very often, the failure to communicate happens passively — not by misunderstanding but by silence or inattention, a kind of erosion that undermines the couple without them even realizing it.

This erosion works insidiously. The couple, who once hung on each other’s every word, begin to take each other for granted. — a habit of mind that eats into the fundaments of the partnership. The acids of daily living together accumulate in the best of marriages, and somehow communicating and understanding, which are the alternating current that electrify a marriage and give it energy and vitality, stop happening.

After a while, couples who stop talking to each other also stop listening when they do. In time, the failure to communication — to talk about mundane and the sublime, the ordinary and the exceptional — leaves two people who cannot grasp each other’s point of view. In time, the marriage, which is a whole that is greater than the sum of its parts, devolves to the sum of its parts — two drifting strangers who have less and less in common. Thus, the failure to communicate it not an error of commission but omission.

Poor communication sometimes happens in ways more insidious than silence and inattention. Sometimes one spouse may think that he or she is communicating when the other spouse does not. Very often partners may have different narrative styles. For example, Rhonda begins a long and textured story about something important to her, and Rufus, tired after a long day of work, blurts out, “Brief me, Honey” or “Cut to the chase, will you?” It is a good bet that Rhonda will feel Rufus is not really listening to her, and worse, does not really care. “What’s the bottom line?” may be a good question in a business meeting, but it is one of the best ways to kill the rapport between spouses. Marriage is like a house. It needs maintenance. A couple who want to stay together talk together. They talk about things, anything and everything.

It is probably safe to say that a marriage cannot work without communication. Probably poor communication is an element in most failed marriages. That so often one spouse is blindsided when the other announces plans for a divorce demonstrates that two spouses can become strangers to one another under the same roof.

And it is a certainty that a marriage going on the rocks cannot be saved without communications, which means sincere talking and attentive listening.

Surprises When the Marriage Ends

Tuesday, March 9th, 2010

The commingling of assets — the mixing of assets, separate and marital during the course of the marriage — makes for problems in equitable division when the marriage ends.

Very often, during the happier times of the marriage young couples pool their money, taking a “what’s mine is yours and what’s yours is mine” world view about their finances. For example, young couples frequently put all the cash they receive as wedding gifts into a pot with the idea that down the road they will use it for a house. During the happy times, neither spouses worries about ownership because “the money is ours,” but commingled property makes for surprises when it is divided in a divorce. Commingling, which is also called transmutation, can happen as a result of a transfer by contract, gift, or a mere change in legal title.

Money in the marital pool often becomes joint property. For example, a money gift to one spouse, which normally is the separate property of the person who received it, deposited in an account in both names become commingled property and may become a gift to the marriage, i.e., both parties.

Gifts between spouses can become very problematic, too. Even property that entered the marriage separate or immune sometimes ends in the pot because spouses, during the happier times, taint their individual claims of ownership by putting it in joint names. Rufus thought he and Rhonda belonged to ages when, on her birthday, he gave her that Picasso print (purchased with an inheritance, which is his separate property) she now claims is her separate property (hence 100 percent hers) and he says was a gift to the marriage (hence subject to distribution).

Unraveling commingled property often becomes like unmaking a martini or unscrambling an egg when it comes to the division of the marital home.
The purchase of the home very often involves the use of separate property (funds brought to the marriage by one party), gifts to the couple (from one or both parents), loans to the couple (again from one or both parents), and funds that one or both made toward the purchase.

Courts wrestling with classification of property conveyed from one spouse to the other must decide if the transfer is a contract, and if not a contract, a gift, and if a gift, one that is marital or one that is separate property. It sounds hard and it can be even harder to do, as is illustrated by Rufus’s Picasso print.

Unscrambling the egg of commingled property frequently demands good legal advice. Case law in jurisdictions varies on this subject.