Remarriage after Divorce

February 20th, 2015

According to statistics, some 80% of divorcees marry again; however, the numbers for divorces from the second and, even third, marriage get worse and worse. Very often when a marriage flounders, one or both partners blame the other. “Because, they do not see themselves as responsible for the previous marriage ending. Generally, they are more likely to believe their partner’s behaviors caused the divorce, and minimize the influence of their own actions.”

People who can accept their part of the responsibility for the marital failure of the first marriage have a better chance making the second marriage work. Before a second trip to the altar, a person should take a look – a hard look — at his or her behavior in the last marriage. It doesn’t matter what the former spouse did; no doubt he or she played a part. By facing the faults of the face in the mirror, however, a person who can do this can be a part of the group whose remarriage is successful.

Some of the faults may have been a reaction to a spouse’s personality; some faults are going to stress a marriage no matter what the other person’s personality might be.

Many people believe that divorce is too easy and the ease of divorce reflects “a disposable culture where everything from water bottles to cars gets thrown away.” The culture of extreme individualism encourages the cult of self. “Individualists promote the exercise of one’s goals and desires and so value independence and self-reliance while opposing most external interference upon one’s own interests, whether by society, family or any other group or institution, according to the dictionary. ” Individualism says “It’s all about me”; a successful marriage says “It’s all about us.”

The Personal Things a Divorce Lawyer Needs to Know

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

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

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.

Fighting Relocation

December 30th, 2014

Since the laws governing parental relocation vary from jurisdiction to jurisdiction, a parent trying to block the relocation of his or her children must understand and follow the detailed rules to prevent that relocation. The custodial parent who fails to follow the rules can loose custody. State laws may stipulate:

> The custodial parent seeking to relocate must modify the noncustodial parent well in advance. Many state laws specify the timelines for notification. Those same laws also provide specific instructions regarding the information included in the notification. In states that require notification, the other parent may also usually file an objection to the relocation or file a motion to prevent the relocation.

> Some states require not only notification, but consent of the other parent. In the event the both parents do not consent, the parent seeking to relocate must bring a motion seeking permission of the court. This often would include a request for a change in custody.

>In disputed cases, courts decide based on legal presumptions and burdens of proof. The particular legal presumptions and burdens of proof in each state dictate how a case should be presented and provide clues into the potential success or failure of a motion to relocate.

The noncustodial parent who maintains consistent contact of his or her children is a better position to object to relocation of a child by the other parent. The parent who remains actively involved in his or her child’s life – his schooling, medical care and extracurricular activities — can use these facts in support of his or her claims. A parent with limited involvement has a greatly diminished chance to contest the relocation.

The presumption whether to allow or disallow a relocation may depend and change based on the custodial situation.

For example, in many jurisdictions, when the custodial parent with primary physical custody seeks to relocate, the noncustodial parent faces a rebuttable presumption that move is permitted, but demonstrating that “the detrimental effect of the relocation outweighs the benefit of the change to the child” may rebut the presumption.

Detrimental effects include a diminution in the noncustodial parent’s from what it had been. As a result, for the noncustodial parent, involvement before the requested relocation can be critical. For noncustodial fathers, who often feel at a disadvantage in relocation battled, the fight may be in gaining joint custody from the outset. Every agreement that diminishes his role may have significant impact later in fighting relocation.

In a divorce, each parent’s intentions for the future should be established, particularly whether they have any intention of relocating. If it is established that the best interests of the children to remain in a certain school district as part of an initial divorce order, relocation may be significantly impaired in the future. Such restrictions must be considered in any divorce decree because a failure to address this issue may leave a parent exposed to potential relocation.

That presumption may change, however, if the parents share physical custody. In such cases, the presumption that exists is often to deny the relocation. Again, presenting evidence that the relocation is in the child’s best interest and that it will not interfere substantially with the nonmoving parent’s relationship to his or her child may rebut that presumption.

Disposition of the Family Home

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

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.

Remorse and Regret

October 2nd, 2014

Remorse and regret is not at all uncommon among couples that call it quits. “Scientific literature suggests that a good three quarters of people who divorce regret it. Maybe not immediately, but 10 years later, they do.

‘I should never have done it’ is the kind of thing usually uttered privately after a divorce. And after the papers have been signed, the property divided, the child custody settled, and the emotional pain still lingering, it’s usually too late to go back,” according to Laura Schlessinger, the socially conservative commentator and marriage and family counselor.

In general, Dr. Schlessinger says, the time after divorce is filled with remorse. “Half of women and a third of men stay angry at their former spouse after a divorce. They mentally just don’t move on. They have to deal with a host of things: loneliness, painful memories, having to get new friends, uncomfortable changes, uncertainty about how they are going to pay their bills (people don’t usually go up in economic standing after their family is torn apart).”

“We live in a society today where marriage and family are no longer seen as sacred, permanent and unconditional. This lack of stability hurts the entire country. The increasing number of second marriages, the resulting stepfamilies, and the even higher divorce rates occurring after the stepfamilies are created all contribute to the problem. It’s not just the dissolution of the nuclear family that’s so destructive – it’s what happens afterwards,” says Dr. Schlessinger.

The past cannot be reclaimed, so someone passing through divorce remorse should remember three things.

> People experiencing divorce remorse can backslide into dependency on the former partner. Reconciliation is not impossible, but trying to do so shortly after the marriage invites trouble.

> After a divorce, people must learn to be “comfortable with the silence of being single.” And when someone is not comfortable with silence, he or she is not comfortable being alone, which means it’s not a good time for a new relationship.

> A person should “try to keep any past wrongs from ruining any future rights.”

Serious Marital Misconduct

September 12th, 2014

Dissipation describes marital funds wrongfully expended, for example, when marital money was used to purchase expensive gifts or trips for a spouse’s girlfriend or boyfriend or when one spouse expended large amounts of money on something unrelated to the marriage without the knowledge or consent of the other spouse.

In such cases, the court can order the spouse who wrongfully spent the money to repay the marital estate. However, the expenditures must have occurred after the marriage was irretrievably broken down and without the acquiescence of the other spouse. Extravagant spending, gambling or excessive borrowing or fraudulent conveyance to third parties – all are dissipation.

Courts look with disfavor on the dissipation of assets, which is the most common form of economic misconduct, and some judges consider it serious marital misbehavior. Very often, when one spouse contemplates a divorce, he or she hides assets that might otherwise be part of the property settlement. In this, wives are at a disadvantage because the husbands often manage the money. The machination of dissipation becomes quite complicated and requires a forensic accountant.

One common form of dissipation is the expenditure of marital funds for a girlfriend or paramour.

Very often courts deal with dissipation via unequal distribution of the remaining marital assets in favor of the victim spouse. The most common way is to treat the dissipated assets as marital property, and then distribute what is already gone as that party’s share of the marital pie. For instance, an alienated spouse who squandered money in the casinos may find the losses negatively credited to his or her share of the marital estate.

Marriage Counseling Can Help

September 12th, 2014

Marriage counseling helps couples experiencing marital difficulties understand and resolve their problems. With the help of licensed therapist, couples communicate more effectively with each other so that they negotiate their differences and take the edge off their conflicts. Couples improve their relationships, particularly during crisis situations.

Depending on the troubles of the marriage, counseling may require only a few sessions, or sessions of at least once each week for several months of counseling.

Each partner analyzes the relationship in an attempt to identify the origin of conflicts.

The marriage counselor is a trained therapist who acts as a mediator guiding the partners who come to understand their differences. The spouses learn to compromise and solve their problems in a practical manner.

Couples normally talk about their problems with some difficulty. The marriage counselor improves communication between the spouses, encouraging them to discuss their differences with each other honestly and rationally. The counselor never takes sides in couples’ disputes but he or she may referee.

Finding the right therapist is central to effective marriage counseling. Both partners need to work with someone whom they are at ease. Even the best therapist cannot cure the ills of the marriage, so spouses must explore issues they might have been avoiding. No matter how serious the problems, marriage counseling means the partners still prize their marriage and are seeking help.

During counseling, couples often get along better because they know that they will have an opportunity to air their grievances. In counseling couples examine the bad aspects of their relationship and rediscover the good ones.

A marriage counselor is a licensed mental health professional that specializes in marriage and/or family counseling. Licensing requirements vary by state, but a couple should look for a marriage counselor or family therapist credentialed by the American Association for Marriage and Family Therapy (AAMFT). In most jurisdictions, therapists must have a master’s or doctoral degree and advanced training under experts in the field.