Archive for the 'Divorce' Category

Divorce after Adoption

Tuesday, June 23rd, 2015

In the happier times of a marriage, divorce isn’t the ending that any parent envisions when they begin the journey of adoption. However, divorce undoes families with adopted children the way it undoes families with biological children. When adopted children are in the picture, however, a parent may feel extra guilt because the trauma of divorce now compounds the dislocation of adoption, thus inflicting an additional sadness on a child with a history of loss.

In a divorce involving an adopted child, the parent who chooses to demonstrate a good ending to a bad situation sets an incredibly important example. The adopted child needs to be guided through his or her own pain and confusion. When a parent displays emotional leadership, the adoptee learns there is life-after-loss.

Whether a couple’s divorce is amicable or acrimonious, the emotional needs of the adopted child must be a high priority for at least the year after the divorce. Parents must remember that divorcing spouses are the marriage role models that children internalize and replicate.

Divorce triggers an adopted child’s loss issues. It is an opportunity to identify and talk about the core issue of loss, validate feelings, offer empathy, and help build a child’s resilience with coping skills. An adopted child’s awareness — that divorce equals abandonment — is an enormous canyon he or she must cross to successfully deal with the stress of this major life change.

Ethical Problems in Family Mediation

Thursday, June 11th, 2015

Often used in a divorce, mediation is a voluntary, non-binding process where a neutral third party helps the spouses reach a mutually beneficial resolution of their dispute. The mediator facilitates communication, promotes understanding, assists in identifying and exploring issues, interests and possible bases for agreement and compromise. Sometimes he or she helps the parties evaluate the likely outcome in court or arbitration if they cannot reach settlement through mediation.

Ethical issues in mediation are typically associated with confidentiality and conflict of interest, according to Trip Barthel, the Founder and Executive Director of the Neighborhood Mediation Center in Reno, Nevada. Sometimes, however, the mediator faces situations that tax the give and take of the process. For example, sometimes mediation moves toward a very unbalanced proposal, or, worse, threatens the well being of parties “not at the table,” such as children in a custody dispute.

Mediation is a fluid and flexible process. JAMS (formerly Judicial Arbitration and Mediation Services), which is a national mediation service, have established guidelines to guide mediators facing an ethical conflict. National in scope, the guidelines are not intended to supplant applicable state or local laws or rules. All JAMS mediators know applicable state statutes or court rules. In the event that these guidelines are inconsistent with such statutes or rules, the mediators complies with the applicable law.

> The mediator must make sure everyone knows about his or her role and understands the terms of the settlement. If a party is unable to give informed consent because of, for example, a physical or mental impairment, the mediation should stop until such informed consent has been obtained from the party or the party’s duly authorized representative.

> The mediator must protect the voluntary participation of each party. The right of the parties to reach a voluntary agreement is central to mediation. Court-ordered mediation can imply reluctance. A mediator should assure the parties that although they have been ordered to attend the mediation, a settlement could be reached only if it is to their mutual satisfaction.

> The mediator must be competent to mediate a problem. A mediator should have sufficient knowledge of relevant procedural and substantive issues. A mediator should refuse to serve or withdraw from the mediation if the mediator becomes physically or mentally unable to meet the reasonable expectations of the parties.

> The mediator must maintain the confidentiality of the process. The parties must understand confidentiality before the mediation begins. The mediator should explain (a) any applicable laws, rules or agreements prohibiting disclosure in subsequent legal proceedings of offers and statements made and documents produced during the session, and (b) the mediator’s role in maintaining confidences within the mediation and as to third parties.

> No confidential information should be disclosed without permission of all parties or unless required by law, court rule or other legal authority. A mediator must not use confidential information acquired during the mediation to gain personal advantage or advantage for others, or to affect adversely the interests of others. If the mediation is being conducted under rules or laws that require disclosure of information, a mediator should so notify the parties prior to beginning the mediation session. In addition, a mediator’s notes, the parties’ submissions and other documents containing confidential or otherwise sensitive information should be stored in a reasonably secure location and may be destroyed 90 days after the mediation has been completed or sooner if all parties so request or consent.

> The mediator must be impartial. A mediator should disclose any information that reasonably could lead a party to question the mediator’s impartiality. A mediator may proceed with the process unless a party objects to continuing service. A mediator should withdraw if a conflict of interest exists that casts serious doubt on the integrity of the process.

> The mediator should refrain from any conduct involving a party, insurer or counsel to the mediation that reasonably would cast doubt on the integrity of the mediation process, absent disclosure to and consent by all parties to the mediation. This does not preclude the mediator from serving as a mediator or in another dispute resolution capacity with a party, insurer or counsel involved in the prior mediation.

> The mediator should exercise caution in accepting items of value, including gifts or payments for meals, from a party, insurer or counsel to a mediation during or after a mediation, particularly if the items are accepted at such a time and in such a manner as to cast doubt on the integrity of the mediation process.

> A mediator should not recommend other professionals. If a mediator is unable to make a personal recommendation without creating a potential or actual conflict of interest, the mediator should so advise the parties and refer them elsewhere.

> If it becomes appropriate to discuss the possibility combining mediation with binding arbitration, the mediator his or her role and relationship to the parties has altered, as well as the impact such a shift may have on the disclosure of information to the mediator. The parties should be given the opportunity to select another neutral to conduct the arbitration procedure.

The Servicemembers Civil Relief Act Protects Servicemembers

Thursday, April 16th, 2015

The Servicemembers Civil Relief Act protects soldiers, sailors, airmen, Marines, Coast Guardsmen, commissioned officers in the Public Health Service and National Oceanic and Atmospheric Administration, from being sued while on active military service of their country and for up to a year after active duty.

In a divorce, SCRA protects active duty military personnel who may request a stay or postponement of the divorce.

A military defendant may enlist SCRA to postpone the case against him or her for the duration of the military service plus 60 days. Generally, however, in cases where the defendant is in the military, “the court must stay the proceedings for at least 90 days (upon application of the Service Member or his or her attorney or on the court’s own motion)” when the court determines there “may be a defense to the action and defense cannot be presented without the presence of the Service Member.”

In order to apply for these protections the servicemember must be a party to the suit. The provision applies to civil lawsuits, suits for paternity, child custody suits, and bankruptcy debtor/creditor meeting; however, it does not apply to administrative hearings, criminal trials, child support proceedings, actions where the service member is a material witness, and situations where the “service member has leave available and has made no attempt to use his/her leave to attend the proceedings.”

Service personnel who become parties to an unwanted divorce use SCRA’s protections to contest it. Often the servicemember’s commander writes a letter to the court and the opposing party’s attorney stating that the servicemember cannot attend the proceedings. The member should not have an attorney draft the letter to the court because a letter could be considered an appearance by the service member and could subject the service member to the jurisdiction of the court.

SCRA was formerly called the Soldiers’ and Sailors’ Civil Relief Act of 1940. Despite the act’s official date of 1940, its antecedents go back as the Civil War when the Congress passed a moratorium on civil actions brought against Union soldiers and sailors. This meant that any legal action involving a civil matter was put on hold until after the soldier or sailor returned from the war. Examples of civil matters included breach of contract, bankruptcy, foreclosure or divorce proceedings.

Congress’ intent in passing the moratorium was to protect both national interests and those of servicemembers. First, Congress wanted servicemembers to be able to fight without worrying about problems at home. Secondly, because most soldiers and sailors during the Civil War were not well paid, it was difficult for them to honor their pre-service debts, such as mortgage payments or other credit.

The Act may now be found in the Appendix to Title 50 of the U.S. Code, Sections 501-596.

Dissipation and Marital Debt

Wednesday, April 1st, 2015

As a rule, debts incurred during a marriage are marital, but not all debts incurred during a marriage are marital.

Courts look with disfavor on dissipation of marital assets. Depending on the situation, debt incurred through gambling, high living and reckless investment may not be a joint responsibility, even when the obligation occurred during the marriage. Courts consider this dissipation and debt caused by dissipation of assets is not marital.


Things to Consider When Hiring a Divorce Attorney

Wednesday, March 4th, 2015

Hiring a divorce attorney is a very important decision. The following are a few important considerations when hiring a divorce attorney.

> The experience of the lawyer. Any divorce attorney should have substantial experience in handling divorce case; he or she should practice primarily in the field of divorce law. An experienced attorney knows what to expect of the judges in his or her jurisdiction and should be able to use this to a client’s advantage.

> Client Testimonials. Former clients are a good source of insight into the attorney. An attorney should be willing to provide client references.

> Communication skills. One of the most common complaints about a divorce lawyer is that clients are unable to communicate with him or her. A divorce attorney must be accessible and prompt in responding to phone calls, emails, and requests for meetings. This is another area where prospective clients can best assess the divorce attorney by hearing what former clients have to say.

> Attorney Costs. Some attorneys do brief initial consultations for nothing; however, most experienced divorce attorneys will charge between $100 and $200 as a consultation fee, and much more for their normal hourly rate. It is a good idea to ask about the attorney’s hourly rate, what the up front retainer is, whether any portion of the retainer is refundable if it is not used, and the billing cycle, if any.

> Comfort Level. A client must have a comfort level with a divorce attorney. A divorce case is too important to entrust to someone who does not inspire complete confidence.

The Personal Things a Divorce Lawyer Needs to Know

Wednesday, February 4th, 2015

In a divorce action, lawyers need to know everything about their clients. Everyone has secrets and in divorce secrets have a way of percolating to the surface. In a divorce, particularly an angry contested action, nothing is sacred, or secret.

Things that even a close friend may not know — a torrid affair, for example — have an uncanny way of coming out in a divorce. The secrecy of these little tidbits — embarrassing, illegal, or wrong things that many people have done — allow people to look at others with a straight face.

With luck, these will not be launched into the cyber-world by the other spouse, or come up in a custody evaluation, or play out in the courtroom; when custody is in dispute, everybody and everything seems to be fair game. A client needs to anticipate that a secret will not remain so, and trust his lawyer with the skeletons in the closet. A lawyer need to know about any past or present illegal drug use and/or addiction issues; the use of any anti-depressants or mental health diagnoses or treatments; romantic involvements; childhood trauma, such as molestation, or a juvenile delinquency history; any income tax evasion; any unusual sex desires; any criminal acts and what the spouse knows about them spouse knows about them.

To be effective, the divorce lawyer needs to help the client properly characterize these items and not let them be used to obscure the merits of a legal position. The last place lawyer wants to hear about any of thee transgressions is from someone other than his client. Without a good rebuttal, the case may be lost.

Younger Children Feel Lasting Effects of Divorce

Monday, January 26th, 2015

Young children have a more difficult time establishing close relationships with their parents later in life, according to new research.

The research, which was published online June 28 and in the September 2013 issue of the Personality and Social Psychology Bulletin, concludes that children whose parents divorced when they were between birth and 3 to 5 years old had a greater level of parental insecurity than children whose parents divorced when they were older.

“A person who has a secure relationship with a parent is more likely than someone who is insecure to feel that they can trust the parent,” said R. Chris Fraley, associate professor at the University of Illinois at Urbana-Champaign and co-author of the study. “Such a person is more comfortable depending on the parent and is confident that the parent will be psychologically available when needed.”

Fraley and graduate student Marie Heffernan completed two studies that analyzed the effects of divorce on children’s relationships with their parents. They surveyed 7,735 people about their personalities and close relationships, and more than one-third of those surveyed came from homes of divorce.

Fraley explained the importance of these findings in determining how people form close relationships after witnessing the end of their parents’ marriage.

“People’s relationships with their parents and romantic partners play important roles in their lives,” Fraley said. “This research brings us one step closer to understanding why it is that some people have relatively secure relationships with close others whereas others have more difficulty opening up to and depending on important people in their lives.”

Marital Debt

Thursday, January 15th, 2015

Just as a divorcing couple must divide what they own, so they must divide what they owe. The piper must be paid.



Credit card companies are not bound by a divorcing couple’s property agreement. In all jurisdictions, joint credit card debt is jointly owned because each spouse has joint and several liability for the obligation. Even when one spouse agrees to take on a debt, if it has the other spouse’s name on it — or in some cases, even it does not — the creditor has the right to come after both spouses for payment.



When debt cannot be paid off, it must be divided. The classification of debt, like the classification of assets, is a preliminary to the distribution. Most jurisdictions hold that the debts must be allocated between the spouses. In distribution, courts consider who incurred the debt and who benefited from it; which spouse is better position to pay it off; and the debt’s relation to a particular asset.

As a rule, secured marital debts must be offset by the value of the asset they encumber. Unsecured marital debt is allocated so that each spouse receives an equitable share of the net balance of the estate. 

Generally, only marital debt is divided, which means any debt incurred for the joint benefit of the parties during the marriage. Joint benefit does not necessarily mean joint use. Debts incurred in the hope of creating marital property are marital.

Debt division depends upon whether the divorcing couple lives in a community property or equitable division jurisdiction. In a community property state, a spouse is responsible for debts incurred during the marriage and it does not matter whose name is on them. In an equitable distribution state, debts in one spouse’s name are his or hers alone, but a spouse is responsible for debts taken in his or her name, even those without his or her consent.

Disposition of the Family Home

Tuesday, December 23rd, 2014

For most couples the place they called home can be emblematic of the marriage. In the emotional tsunami of divorce, couples often act out melodramas of vindication that makes the house the symbol of the home, which now moves into the realm of a bittersweet memory of what was but is no more.

Letting go the house means letting go of the past, and that can be very difficult when a person’s world seems to be unraveling. The disposition of the family home can be charged with emotion, particularly for the wife who makes the home a nest for child rearing. Both home and house refer to a place of dwelling but differ in psychological and emotional affective connotations. A house is a building of bricks and mortar, wires and pipes, wood and tile; a home is a state of mind and a habit of the heart. People invite loved ones and friends to make “make yourself at home” and speak of nursing homes; members of Congress meet in the House of Representatives.

A modest bungalow where a loving couple nurtures each other is a warm and loving home; a McMansion occupied by a loveless husband and wife is just a big house. A home is an abode that provides peace, comfort, happiness, security and confidence — qualities not expected in a house of bricks and mortar. A home creates emotional attachment because of the feeling of ownership and shelter if provides its members.

A family living in a house for a time accumulates emotions and memories associated non-rationally with the abode that is their home, so when divorce shatters the status of the family, the home itself seems at emotional risk.

The affective connotation of the word home can steer a divorcing couple down a cul de sac to financial trouble. The decision to keep the house that had been the marital home demands both long-term and short-term thinking.

Many times, women who keep the marital home find themselves house poor, and a woman should throw a cold eye on a settlement that gives her the house, particularly if the settlement is short on liquid assets on her side. Judges are very inclined to award the house to the wife so that school-age children experience the least disruption (particularly in states where the courts enjoy discretion in the equitable distribution of property). This means that the equitable distribution of property may result in the marital home going to a mother, but the person awarded the marital home should be certain that he or she can afford to keep it. A house is a barren asset that pays nothing until it is sold and costs money to maintain.

For many couples, the home is their most valuable asset, so sale is often the only option if both parties are to receive an equitable share in the distribution of joint assets. In general, therefore, couples have three choices. They can 1) sell the house and split the proceeds; 2) agree to have one spouse buy out the other’s interest as part of the overall settlement; or 3) continue to own the house jointly. Each of these approaches has advantages, depending upon the situation of the divorcing couple.

Selling the house, the most common course, raises possible tax considerations, the problems of renting versus buying, and getting a new mortgage. At the least, both parties should know the basis for the property — the original cost, minus improvements. Under current tax laws, each spouse may exclude up to $250,000 (or $500,000 as couple) from any capital gains tax if they have lived in the house for any two of the last five years.

A buy out by one spouse requires that the house be appraised independently. In this routine, after an appraisal, some couples dividing marital property often use a property settlement note. In this arrangement, one spouse pays the other a sum for a negotiated length of time at current interest rates.

A buy out gets one spouses name off the title, but it normally leaves his or her name on the mortgage. This may have an impact on a party’s credit rating.

Joint ownership often appeals to spouses who want to keep their children in the same house until they finish school. In this arrangement, when the divorce happens, the couple become tenants in common, which means they each own half the house. Normally, the couple works out arrangements whereby one party, the one who stays in the house, pays the mortgage, while all other costs are split evenly. When the children finish school, the parties sell the house and split the proceeds.

If the house must be sold, the provisions of the sale should address how, when, by whom and in what manner that sale is to happen.

Imputed Income

Wednesday, November 5th, 2014

Questions of imputed income arise when a person’s income diminishes while his earning capacity remains the same. Sometimes in a divorce, one party (usually the husband) may reduce his income in a bid to dodge alimony or child support. For example, the Wall Street powerhouse who quits the world of finance to become a street musician in New Orleans may raise questions of imputed income in his divorce.

In some cases, imputed income is used in child support cases when a judge believes a parent has deliberately become unemployed or underemployed for the purpose of lowering his child support payments. In such a case, the judge may impute a reasonable amount of income to that parent. This basically means the judge evaluates child support obligations based on the amount of income he believes that parent should have.

Income must be imputed for child support purposes; however, in most jurisdictions the court is not required to impute income for alimony. Since child support is determined based on a statutory schedule calculated using the incomes of both parties, the imputed income issue must be resolved before child support can be determined.

As with alimony, a trial judge may find several reasons not to impute income. The legal justification for not imputing income for child support is the same as for alimony. Generally, alimony is based on the need of one spouse for it and the ability of the other to pay it. The standards of living, as established by the parties during the marriage, usually defines part of the need portion of the equation. Offsetting the need is the amount the receiving spouse earns or could earn. The potential amount is called imputed income. That is, the trial judge may impute to the receiving spouse some amount of monthly income and calculate the paying spouse’s requirement to pay as though the receiving spouse was actually earning that amount.

The basis for the determination of the amount of imputed income is not a simple mathematical calculation. It also may, and often does, require the testimony of expert witnesses. Vocational evaluation experts examine the spouse requesting alimony to determine if he or she is capable of working.