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Table of Contents
OVERVIEW ..................................................................... 6

BASICS ........................................................................... 9
NO-FAULT DIVORCE ................................................................................. 10 UNCONTESTED DIVORCE VS. CONTESTED DIVORCE ............................ 12 SIMPLE DIVORCE / SUMMARY DIVORCE BASICS ................................... 14 COLLABORATIVE DIVORCE ...................................................................... 16 DIVORCE MEDIATION............................................................................... 18

CHOOSING A LAWYER ................................................ 21
HOW TO HIRE A DIVORCE LAWYER ......................................................... 22 HOW TO PREPARE FOR (AND GET THE MOST OUT OF) YOUR FIRST MEETING WITH A DIVORCE LAWYER ...................................................... 27 DOCUMENTS TO GATHER FOR YOUR ATTORNEY IN A DIVORCE ......... 31 BUDGETING AND ORGANIZING RECORDS DURING A DIVORCE.......... 33


COSTS .......................................................................... 38
HOW MUCH WILL MY DIVORCE COST & HOW DO I SAVE MONEY ON IT? ………………………………………………………………………………………………39 FIVE TIPS THAT WILL HELP SAVE MONEY ON YOUR DIVORCE ............. 43 HOW TO PREPARE YOUR FINANCES IN THE TIME OF DIVORCE ........... 47 DIVORCE AND TAXES ................................................................................ 52

PROCESS...................................................................... 55 PROPERTY DIVISION .................................................. 67
COMMUNITY PROPERTY DIVISION VS. EQUITABLE PROPERTY DIVISION IN DIVORCE ............................................................................................... 68 WHAT IS NON-MARITAL PROPERTY? ...................................................... 71 DIVORCE PROPERTY SETTLEMENT: TIPS FOR PROPERTY DIVISION ..... 75 DIVIDING PROPERTY IN A DIVORCE: WHO GETS THE FAMILY HOME? 78 DIVIDING RETIREMENT PLANS IN DIVORCE .......................................... 80 DIVIDING A BUSINESS IN A DIVORCE ..................................................... 84 DIVORCE DEBT AND CREDIT ISSUES ....................................................... 87 UNDERSTANDING BANKRUPTCY AND DIVORCE ................................... 91 HIDDEN ASSETS AND DIVORCE ............................................................... 93 PAYING ALIMONY (SPOUSAL SUPPORT) ................................................ 98 ALIMONY PENDENTE LITE ....................................................................... 99 REHABILITATIVE ALIMONY .................................................................... 101 FACTORS AFFECTING SPOUSAL SUPPORT (ALIMONY) AWARDS ....... 104


ALIMONY (SPOUSAL SUPPORT) MODIFICATION ................................ 107 ALIMONY (SPOUSAL SUPPORT) TERMINATION .................................. 109

CHILDREN AND DIVORCE......................................... 113
HOW TO TELL YOUR CHILDREN YOU’RE DIVORCING ........................ 114 WAYS TO HELP YOUR CHILDREN GET THROUGH A DIVORCE ........... 117 PARENTING PLANS ................................................................................ 123 HOW DO I CALCULATE CHILD SUPPORT? ........................................... 125 FAMILY LAW - RELOCATION WITH CHILDREN ..................................... 128

AFTER DIVORCE ........................................................ 132
ENFORCING YOUR DIVORCE DECREE .................................................. 133 APPEALING YOUR DIVORCE DECREE ................................................... 136 PARENTING CONSULTANTS POST-DIVORCE ....................................... 138


Whether you're just starting the divorce process or you're in the midst of a custody battle with your ex-spouse, we have you covered. Here you'll find everything you need to know about divorce, property division, alimony, and choosing a divorce lawyer.


The Top Five Signs Your Marriage is in Trouble
Written by: Nathan Templeton Anderson, Litigation Lawyer

1. You Dream of a Life Without Your Spouse It is not uncommon for us all to wonder “what if” during our day-to-day lives, but when you start thinking about how your life would be better without your spouse, you’ve definitely got a sign that your marriage is in trouble. 2. You Keep Things to Yourself I’m surprised at how often clients come in and tell me that they simply quit communicating their needs and concerns to their spouse. When your marriage has reached a point to where it's not worth it to “bother” your spouse with your concerns and needs, this is another sign the marriage is in trouble. Open communication is a key to any successful relationship, and holding things back from your spouse is quite unhealthy to the marriage. 3. You're the Only One Working on the Marriage If you feel that your spouse is not putting the same amount of effort into the marriage, then feelings of resentment and anger can really kick in. Anger sometimes fuels people to make rash decisions;


however, feeling a lack of reciprocal effort is a definite sign the marriage is on rocky grounds. 4. Your Marriage Lacks Intimacy Sex is an important part of any healthy marriage. If one spouse seems uninterested in sexual intimacy with the other, this is a sign the marriage is in trouble. Even more so, if one spouse is withholding sex as a form of “revenge,” then this too indicates a storm is brewing. 5. The Bad Outweighs the Good This one ties in closely with all the other signs. If you feel there is more trouble in paradise, then there are some issues that need to be confronted.


The kind of divorce you want and how well you and your spouse can agree on issues will affect the choice to hire an attorney, and what type of services you need from them. Learn more about the different types of divorce and determine which one is right for your circumstances.


No-Fault Divorce
No-fault divorce is the most common type of divorce case, and is available in all states except New York. A no-fault divorce is one where the spouse seeking a divorce doesn't have to prove the other spouse did something wrong, but instead gives a reason recognized by their state, such as irreconcilable differences.

Getting a no-fault divorce
If you are seeking a divorce, a no-fault divorce may save you money as you do not have to sue your spouse and prove that he or she caused the marriage to break up due to an issue such as adultery or spousal abuse. However, some states require the couple to live apart for a period of time before a no-fault divorce can be granted. If the couple agrees on how to divide their assets and on alimony, child support, and custody issues, they may save money by representing themselves, or by using a family mediator to hammer out the details of their divorce. If there is disagreement about these issues, you will want to get a divorce lawyer to represent you in court.


No-fault vs. fault divorce
In some states, you can still pursue a fault divorce, where the spouse seeking the divorce must prove that his or her spouse is at fault for breaking up the marriage. Typical grounds for a fault divorce are cruelty, adultery, desertion, imprisonment for a period of time, and inability to have sex if that wasn't known before the marriage. While no-fault divorce is far more common and easier to obtain, some people choose a fault divorce. They may not want to wait through their state's required separation period. In some states, they may receive more of the assets or more alimony by proving fault. If you choose a no-fault divorce, your spouse cannot stop the divorce. In a fault divorce, however, the spouse could prevent the divorce by proving the charge against them is untrue. The person accused of the fault could also stop the divorce by proving that his or her spouse in some way condoned or provoked the activities that put the spouse at fault. An experienced divorce attorney can help you determine which type of divorce is right for you.


Where to file for divorce
Ideally, you will want to file for divorce in the state where you live. All states require that you reside in the state before filing for divorce there, though the length of residency required varies from state to state. Divorce proceedings may drag on for some time, so you will save on travel and lost work time if the divorce court is near you. If you suspect your spouse may file for divorce in another state, you may want to take the lead and file in your home state.

Uncontested Divorce vs. Contested Divorce
When people think of divorce, many usually envision a nasty battle in court over every last stick of property—even the ugly wedding china no one really wants. However, what they may not know is that approximately 90% of divorces are uncontested. What this means is that the parties involved are able to settle their differences without even going to trial.


Uncontested divorces
In an uncontested divorce, the spouses reach mutual agreement on relevant issues like alimony, child custody, child support, and asset division. The court doesn’t get involved because the two parties manage to settle all their issues without litigation. Because of this, uncontested divorces usually save significant time and money compared to contested divorces.

Contested divorces
By contrast, two spouses go through a contested divorce process when they’re unable to reach an agreement on issues even after trying alternatives like mediation. When this happens, the divorce case then goes before the court where the judge (or jury) makes the final call on each issue. Whereas having an attorney isn’t always necessary for an uncontested divorce, getting an attorney for a contested divorce is probably a prudent measure. This is because the issues involved are usually complex and may involve navigation of technical legal procedures. In general, contested divorces tend to be much more stressful, take much longer to complete, and also cost more due to attorney fees.


Simple Divorce / Summary Divorce Basics
If you want a divorce and you and your spouse have no children and no property together, then you may want to consider getting a simple divorce (aka summary divorce, summary dissolution). A simple divorce is the cheapest type of divorce and also the quickest to complete.

Requirements of a summary divorce
Each state’s laws may have slightly varying requirements for a married couple’s eligibility for a summary divorce, but they usually include some version of the following conditions:
   

No children A short marriage (typically 5 years or shorter) Little or no property/debts owned together Total value of marital property is less than a certain amount (usually about $35,000) Each spouse’s total separate property value is less than a certain amount (usually same ceiling as marital property)


Benefits of a simple divorce
Benefits of a simple divorce compared to a traditional divorce: Much cheaper. The costs usually only encompass the filing fee, and minimal attorney fees if you hired representation.

Few or no court appearances. In some states a court doesn’t require you to make an appearance at all, whereas courts in other states may have you show up just once or twice. Extremely quick. Since couples filing for a simple divorce have no children and very little to no property, a big portion of what usually takes up most of the time in normal divorces is cut out. In some states a simple divorce can be completely concluded in about one month if all the paperwork is filed on time.

Check with your specific state's laws to find out more if you're interested in seeing whether you can get a simple/summary divorce. If a simple divorce isn't appropriate for your situation, then you may want to check out information on uncontested divorce or contested divorce. 15

Collaborative Divorce
Collaborative divorce occurs when spouses and their lawyers commit to negotiating a settlement agreement without going to trial. This increasingly popular approach brings each spouse and their specially trained collaborative lawyers together in face-to-face meetings to work out their issues. Often, a collaborative divorce is simpler, quicker to achieve, cheaper, and less acrimonious than a traditional divorce trial.

How collaborative divorce works
Each spouse hires his or her own lawyer experienced in collaborative law. In a series of four-way meetings, the lawyers facilitate communication between the husband and wife regarding child custody, property distribution, alimony, and other issues. Each party identifies its goals and priorities and listens to the other's point of view.

Documents that clarify issues are disclosed to ensure complete transparency. The spouses and their lawyers work as a team to solve problems and brainstorm solutions until they reach a mutually beneficial settlement agreement. This agreement is put in writing and presented to a family court judge for signature and inclusion in the final divorce decree.


If the husband and wife fail to reach a settlement and the case goes to court, the collaborative lawyers are legally bound to withdraw from the case. Each spouse will need to hire new lawyers for litigation.

Collaborative divorce versus divorce mediation
The critical difference between collaborative divorce and divorce mediation is that a mediator can't provide legal advice. A mediator helps spouses identify issues, examine options, and reach resolution without advocating for either side. If either spouse needs advice in regard to a particular issue, they must turn to a lawyer. However, both mediation and a collaborative approach help reduce the emotional strain of divorce and keep decisionmaking in the divorcing couple's control. They create conditions where a couple can continue to have a civil relationship. This is especially important when divorcing couples have children and plan to share custody.

When to get a collaborative divorce
A collaborative divorce is a good option if both you and your spouse are committed to working together. If one party refuses to share important information, or is unwilling to be open and flexible, a collaborative divorce won't work. 17

Furthermore, if there is a history of abuse, serious mental illness, or financial misconduct, a collaborative divorce isn't an option.

Divorce Mediation
In some states, divorce mediation is an alternative to going to trial to decide the issues of a divorce. In others, divorce mediation is required before a divorce trial can begin. In divorce mediation, a mediator meets with a husband and wife and acts as an impartial third party to facilitate an agreement. Often, mediation is a quick, less costly way to resolve disputes and reach a mutually beneficial outcome.

How divorce mediation works
In divorce mediation, couples choose a mediator (or the court appoints one) to discuss their cases. The mediator is often a lawyer or retired judge, but is not required to be. Over a single or several formal sessions, the mediator meets with the husband and wife separately or, at times, separately with the husband and wife and their lawyers. The mediator helps each party clearly define their issues and priorities and freely express their emotions and points of view. Each party presents documentation that clarifies and substantiates his or her issues. The mediator then 18

encourages both parties to identify common goals, brainstorm options and accept compromise. The husband and wife evaluate their options and decide upon workable solutions. The process concludes with a written mediation agreement, sometimes called a Memorandum of Understanding, which outlines all the details that the mediation has covered. It's important to note that a mediator tries to guide couples to reach an acceptable settlement. He or she does not give legal advice or make decisions for the couple. Both the husband and wife should have their lawyers review the mediation agreement before signing it. Once it's signed, the court uses the mediation agreement to create the final divorce settlement.

Benefits of divorce mediation
With divorce mediation, the husband and wife have control of the major decisions that affect their post-marriage life. Litigation, on the other hand, leaves the decisions up to the court. In states that do not require divorce mediation, many couples still choose it in order to bypass the uncertainty and costs that come with litigation.


Divorce mediation doesn't simply decide who gets what. It takes into account the unique issues that underlie the couple's conflicts. The process is intended to resolve differences and create a situation where a relationship can continue. This is especially important where divorcing couples have children and plan to share custody. In fact, many state courts mandate mediation in child custody disputes.

When to seek divorce mediation
If your state does not already require divorce mediation, it may be a wise choice if you and your spouse seek joint child custody, or agree about parenting issues, and plan on a fair distribution of property. Divorce mediation creates a less adversarial environment for your children and helps you and your spouse put together a co-parenting plan based on mutual interests. Divorce mediation is also recommended after a divorce has dragged on for some time, to reduce additional costs and delays.


Choosing a Lawyer
If you've decided that you need a divorce lawyer, you may want to check out these tips. Find out how to choose a good divorce attorney, get the most of your consultation, and what documents to prepare for meeting with your lawyer.


How to Hire a Divorce Lawyer
Written by: Marshall William Waller, Divorce / Separation Lawyer

I’m Thinking about a Divorce: What Do I Do Now?
Developing a plan of action for handling your divorce is not all that hard to do. Sit down with a pad of paper and list the issues that you feel you will be dealing with during the divorce. The major issues are: child custody, child support, spousal support (alimony) and property division. Do you and your soon-to-be ex-spouse agree on any of these issues? The more you agree upon the less there is to fight about, and the less there is to fight about, the less costly the process will be, both financially and emotionally. On the issues where you have agreement, write down in simple and clear terms exactly what you and your spouse agree on. Don’t leave anything out; if you wonder whether or not a detail is important, it is.

Should I Hire an Attorney Or Should I Go it Alone?
If you are financially able to afford an attorney, you will almost always be better served by hiring a professional to represent your interests than by trying to do it yourself. This has nothing to do with your ability to learn the information and procedures needed to present your case. Indeed, many


attorneys who find they getting a divorce do not represent themselves, not even the divorce attorneys.

I Don’t Know Anything about Attorneys. What Kind of Attorney Should I Hire?
Most people spend more time buying a new car than they do picking out an attorney to represent them in one of the most emotionally trying and difficult times of their lives. You should first gather up all the information and personal referrals you can from friends, family, co-workers and other people who went through the same thing that you are about to go through and who were happy with their attorney. Next, research and review the qualifications of attorneys in your area on the Internet. Then, go out and interview lawyers. Make sure the attorney practices in the area of Family Law. Be aware that some lawyers these days advertise themselves as being the “best lawyer” or “super lawyers,” but these self-aggrandizing titles have the potential of creating an unjustified expectation about results the lawyer can achieve.


Should I Go to War with My Ex-Spouse?
A divorce should not be a war. The quickest way to burn through your savings, your children’s college funds, all of your assets, and everything that you have worked so hard for throughout your life, is to go to war with your spouse. It is such an easy thing to do; many good and decent people are drawn into that without even realizing what is happening. It is said that criminal lawyers see bad people at their best and family lawyers see good people at their worst. Don’t be one of the good people who end up behaving “at your worst.” Nobody will win, except the attorneys.

What Is a Certified Family Law Specialist?
Not every family law attorney is a Certified Family Law Specialist, and depending on the complexity of your case, you may not always need a specialist. Certification requires extensive education and experience in the field of family law. In California, to become certified as a Family Law Specialist by the Board of Certification of the state Bar of California, a lawyer must pass a second specialized bar examination in the subject area. They must demonstrate that they have a certain level of experience handling a sufficient number of family law cases with varying degrees of complexity.


It normally takes years of family law practice for an attorney to acquire the experience of the various types of family law cases required by the Board of legal specialization. Theuy must also undergo a positive peer review process and maintain a minimum number of hours of continuing education in the family law field.

What Can I Expect at the First Meeting with the Lawyer?
This initial consultation gives you both the opportunity to screen and evaluate one another. You need to have a sense of trust and confidence in the attorney. Don’t be afraid to ask questions: Where did you go to school? How long have you been practicing this kind of law? Do you know my spouse? Do you know my spouse’s attorney? How many of these cases (like yours) have you handled? Do you have any specialties or specializations? What percentage of your practice is devoted to family law? How many family law cases have you taken to trial? How many have you won? (As a point of personal observation, be wary of the attorney who says he or she has never lost a case. That usually means they are not taking very many of them to trial). Have you ever been sued for malpractice and, if so, why? Has anyone ever filed a complaint against you with the state bar?


What Should I Expect Regarding Fees?
This initial consultation gives you both the opportunity to screen and evaluate one another. You need to have a sense of trust and confidence in the attorney. Don’t be afraid to ask questions: Where did you go to school? How long have you been practicing this kind of law? Do you know my spouse? Do you know my spouse’s attorney? How many of these cases (like yours) have you handled? Do you have any specialties or specializations? What percentage of your practice is devoted to family law? How many family law cases have you taken to trial? How many have you won? (As a point of personal observation, be wary of the attorney who says he or she has never lost a case. That usually means they are not taking very many of them to trial). Have you ever been sued for malpractice and, if so, why? Has anyone ever filed a complaint against you with the state bar?


How to Prepare for (and Get the Most Out of) Your First Meeting with a Divorce Lawyer
Written by: Monica H Donaldson Stewart, Divorce / Separation Lawyer

Prepare a list of questions in advance.
Before your appointment, prepare a list of questions regarding your situation. The most frequently asked questions we encounter are 1) How long will this take; and 2) How much will this cost. Do not be afraid to ask any questions, even if you think they are silly or minor. Be prepared that the attorney may not be able to answer all of your questions immediately. Many of the answers will depend on the information you provide. You may not like all of the answers you receive. If you get the sense that an attorney is only telling you what you want to hear, it is probably not the right attorney for you.

Take some time to review your finances before your appointment.
If you have been the spouse to maintain the household finances, make sure you have a general idea of your marital assets (e.g. house, cars, bank accounts, retirement accounts, stocks/bonds, etc.) and marital debts (e.g. credit cards, personal loans, lines of credit, mortgage(s), etc.). If you have 27

not had access to this information, your attorney can request that the other spouse provide the information. Try to gather details regarding both party's incomes (e.g. copies of paystubs, prior years tax returns, etc.). Finally, be prepared to discuss a budget of what your combined household expenses have been vs. what you anticipate your expenses will be after separation. Do not hold back information - an attorney cannot effectively represent you without full, accurate information.

Arrive a few minutes before your appointment is scheduled Usually, attorneys will expect you to complete intake paperwork prior to the start of your appointment. If you can request this paperwork in advance, you can save some time. Otherwise, arrive early and make sure you have basic information such as both parties' full names, contact information, employment and income information, dates of birth and social security numbers. Further, if you have children, you will need their names, dates of birth, and addresses for the past 5 years.


Bring any paperwork that has been filed
If you have already been served with paperwork, bring it with you so your attorney can review it and provide you with specific information rather than having to speculate based on what the papers "might" say. Further, if you have been served, make your appointment as soon as possible. There may be deadlines for responding to the paperwork and if you fail to meet the deadline, your rights may be affected.

Ask your attorney to discuss a budget for your case
Unless you are quoted a fixed/flat fee (unusual in divorce cases), it is impossible at the first meeting for an attorney to definitively say how much the case will cost. Every case is different, and there is no way to predict how complicated a case might become. Nevertheless, there are certain steps that will occur in any divorce action, and your attorney should be able to give you a sense of how much time should be involved in each of these steps. If you have limited resources, be sure to make this clear to your attorney so you can have the "money" conversation before it becomes an issue down the road.


If you don't get a good feeling, this is not the lawyer for you. You must feel comfortable with the person you choose to represent/advise you. Your attorney will know everything about your life and will be counseling you on how to conduct yourself during the course of your case and beyond. No matter how highly recommended someone comes, if you don't think it is a good "fit," move on to someone else.


Documents to Gather for Your Attorney in a Divorce
Written by: Alan Scott Funk, Divorce / Separation Lawyer

Here is a list of the main source documents used in a divorce: 1. Real property records.
o o o

Local address Legal description Copy of the most recent real estate assessor's statement Information as to any outstanding mortgage, deed of trust or real estate contract Exact name(s) in which title is held Estimated value of property All bank accounts of either party or businesses owned by either party


o o

2. Bank records

3. Tax returns and supporting documents both personal and business 4. Pay stubs, W2, K1, 1099 5. Balance sheets and profit / loss statements for selfemployed, or parties with ownership interest in a business 6. Contracts showing right to income in the future


7. Investment account records with sufficient information to assess tax consequences of sale of stock after award. If tracing is an issue, continuous records without a gap are necessary 8. Promissory notes, including those showing obligation and those showing right to income 9. Purchase / sale agreements - car 10. Statements for retirement benefits, and copy of Defined benefits plan, or other documents describing rights 11. Shareholders agreements, and other corporate documents for closely held businesses 12. Lists, loan applications, or other documents showing assets owned by either party 13. Present and prior Wills 14. Trust instruments with party either grantor, trustee or beneficiary 15. Gift tax returns (all) 16. Credit card statements 17. Real and personal property tax bills 18. Deeds to property


Tips for Budgeting and Organizing Records During a Divorce
Written by: Constance Pifer Brunt, Divorce / Separation Lawyer

Divorce can be a very stressful and confusing time. Being organized and gathering the information needed to make educated decisions is critical. This transition can also be financially challenging, requiring preparation for the necessary budget adjustments.

Gather Important Records
When contemplating or beginning a divorce process, one of your most important tasks is to gather the records and documents that will help develop a complete picture of your family’s financial situation. In order for you to make solid long-term decisions about the distribution of assets, the payment of debts and management of the family’s cash flow, it is critical to have comprehensive, accurate and current information.


What Records Will I Need?
Although each family’s situation is unique, here are some of the more common records that should be accumulated:
     

Income tax returns for the past 3 years Most recent paystubs Employment contracts Statements of employment benefits Current statements for all retirement plans and IRAs Copies of all stocks, bonds, savings bonds, CDs, options, employee stock ownership plans, etc. Current statements for all bank or credit union accounts, investment accounts and mutual funds Life insurance policy declaration pages & current statements of value Deeds to all real estate Current statements for all debts Vehicle titles and registration documents Homeowners and auto insurance policy declaration sheets Current financial statements, tax returns, partnership or shareholder agreements for businesses Any prenuptial agreements

   


What About Personal Papers?
In addition to financial documents, you should locate and secure in a safe place these important personal papers:
     

Birth certificates for the entire family Social security cards for everyone Marriage license or certificate Military paperwork Passports Wills, trusts and other estate planning documents that have been created

Get Your Budget in Order
Separating or divorcing families almost always experience significant financial strain as they restructure into two separate households. Lifestyles of intact families are usually premised on a single household, often with two incomes. The addition of extra expenses for a second residence can uncomfortably stretch the family’s resources.


How Can I Prepare For The Financial Transition?
Here are some ways to prepare for this transitional period:

Develop a budget, listing all expenses. Reviewing credit card statements and check registers for the last year can help in this task.

Cut non-essential spending by identifying expenses that can be reduced, eliminated or postponed. Examples might include dining out, clothing purchases, gym fees, and entertainment expenses. Try to pay cash for any purchases, reducing credit card use.

Identify your fixed, necessary expenses such as rent or mortgage payments, car payments, utilities, food, medical insurance and expenses, etc.

Review all outstanding debt to see if some can be eliminated or minimized by transferring balances to lower interest-rate credit cards or loans.

Try to accumulate a cash reserve. This can be a lifeline if you lose your job or have difficulty receiving support payments. It will also help you fund the cost of divorce proceedings and prepare for a secure financial future.


Separation and divorce can be a scary time emotionally. It can also be a very financially challenging lifestyle change. Preparation and thoughtful budgeting can ease the transition. It is also important to seek legal advice as early as possible to avoid costly mistakes and to help you to plan most effectively for this huge change in your life.


To most people, divorce can be painful not just emotionally, but also financially. Below you'll find a wealth of information on how to manage your divorce costs. Discover great tips such as how to keep your legal fees from breaking the bank and how to get your finances in order at the time of divorce.


How Much Will My Divorce Cost AND How Do I Save Money On It?
Written by: David Alexander Browde, Divorce / Separation Lawyer

How Do the Charges Work in a Divorce Case?
Lawyers in divorce cases work for an hourly rate, usually billed in tenths of an hour. That's because most states do not allow any other form of compensation - contingent fees in divorce cases are usually prohibited by state law. Atop your lawyer's fee will be fees charged by the Court - these vary by state but usually are less than $500 even in the most bitterly contested divorce cases. In New York there is an Index Fee (currently $210) at the start of the case, and several other fees along the way, including separate fees for the Request for Judicial Intervention ($95), the Note of Issue ($30) and any motions along the way ($45 each). Think of these fees as tolls taken by the State Court system as your case travels through the courthouse. In a truly uncontested divorce the Court fees may total as much as the fees you pay your attorney. In a contested case the legal fees will be the largest factor in the cost.


How Expensive Should My Lawyer Be?
Lawyers charge fees based on their experience and upon what they think the market will bear. Depending on where you live, lawyers who work on divorce cases usually charge hourly fees that range anywhere between $150 and $1100 no kidding, there are top level divorce attorneys who can and do charge well above one thousand dollars an hour. Your next question will likely be "Can you tell how good an attorney is by the amount they charge?" The answer is what you'd expect: no. In choosing an attorney you should look not just at the hourly rate but at how efficiently they work, what their reputation is and, most importantly, whether you can communicate effectively with the lawyer. Does the attorney understand your situation? Has he or she dealt with these issues before? Do the solutions and tactics being proposed make sense? Are they likely to be cost effective?


What Drives the Cost of the Divorce?
What drives divorce costs dramatically higher is one thing and one thing only: disagreement between the parties. If the husband and wife can agree on the key issues, such as grounds, custody, child support and property division, all that remains is drafting of documents. But when there are battles, negotiations, debates - all those things take time. And as noted above, the lawyers are charging by the tenth of an hour. So, if both sides are represented by attorneys (and they should be!) a debate over who gets to keep the painting in the living room or Aunt Sally's wedding present can quickly become far more expensive than the painting or buying a new toaster oven. That's not to say that key issues and disagreements shouldn't be fought out - either in negotiation or litigation - but simply a word to the wise. It often makes sense to settle economic issues rather than litigate them.

Why Can't My Lawyer Tell Me Now How Much it's Going to Cost?
A good question, with a simple answer. Your lawyer can't predict what the other side is going to do. If there's reason prevailing, issues can be resolved inexpensively. However, if emotions are running high (and, understandably, they often are in divorce cases) then there can be bumps in the road to 41

your divorce. Each of those bumps can cause delays and increase costs, as issues come up that have to be resolved, delaying resolution of the case and adding to the legal fees.

What Can I Do to Keep My Divorce Costs Down?
This could become a guide all by itself, but the primary points to remember are: 1. Be organized. Your lawyer will need documents and information in order to negotiate and prepare your divorce. If you have that information available, you can save time and money. 2. Try to control your emotions. Divorce is a difficult thing for many people, but try to see this aspect as a business deal. You've already dealt with the emotionally difficult issue of breaking up. Now you're just dividing the dishes. 3. Be reasonable. Litigating issues is expensive. If you can reach an agreement, do so. Save the fights for the really important things.


4. Communicate honestly with your lawyer. Ask questions when you have them. But make sure you've given accurate answers to the lawyer's questions, in order to avoid expense and delays when the other side comes up with something that surprises your attorney.

Five Tips that Will Help Save Money on Your Divorce
Written by: David Alexander Browde, Divorce / Separation Lawyer

Divorce is almost always a painful experience. But you can limit the pain to your finances if you remember one basic principle: your lawyer is working on an hourly basis. That means that to save money you will want to minimize the number of hours the lawyer spends working on your case. Your mileage may vary, and some of the suggestions in this guide may not be appropriate for your case. But for most, these guidelines will steer you away from the pitfalls that can result in extra expense on the way to escaping a failed marriage.


1. Be organized
Organize your personal information in advance. Have the statistical information ready: full names of adults and children, social security numbers, dates and places of birth, date and place of marriage, whether it was a civil or religious ceremony. If you have all this information in advance, your lawyer will be able to plug it in to the multiple places the statistical stuff is needed as you move towards your divorce. Get your tax returns and other financial information ready. If child support or spousal support is at issue you'll need up to three years of tax returns as well as your most recent check stubs to show current income.

2. Control your emotions
Divorce is a difficult thing for many people, but tries to see this aspect as a business deal. Sure, you'll have to deal with the emotionally difficult issue of breaking up. But try to deal with the legal aspect as just dividing the dishes. Think of this as #2-A: be reasonable. Litigating is expensive, so you should always try to resolve as much as you can with your spouse before bringing in the lawyers. If you can resolve issues like custody, visitation and holiday schedules, property distribution or grounds for a divorce, you're cutting down on the time it will take to finish 44

the negotiations the lawyers will be doing. Remember, when the lawyers are negotiating, the clock is ticking – at least double time. The lawyers can help you get past issues on which you disagree, but if you're arguing over little things, the cost of the argument will be more than the cost of replacing whatever wedding present you think you should have.

3. Unless you need instant answers, e-mail your attorney with questions rather than asking them on the phone
That way you'll get a complete answer that you'll be able to absorb at your own pace, rather than trying to take notes on a conversation and perhaps having to repeat things that you don't understand when they're spoken rather than written. Don't let your lawyer get caught by surprise. That means don't be embarrassed, tell your lawyer the unvarnished truth about everything you're asked. The attorney won't be judging you, but you and the attorney will be the losers if the other side contradicts something your attorney has put forth as a fact.


4. Try to limit the amount of hand holding you need
Of course divorce is an painful process, an emotional rollercoaster. You'll need to talk to your lawyer about any number of important issues. Ask questions whenever you have them, and don't be shy about making suggestions if you have them. But if you can get your emotional support from friends rather than your attorney, you can save significant amounts of money.

5. Above all, remember, you can be penny wise and pound foolish
Saving money on legal fees isn't a good idea if the result is a bad outcome. But if you can use some of these suggestions you'll find that your legal costs are lowered substantially over the course of a contested divorce.


How to Prepare Your Finances in the Time of Divorce
Written by: Maury Devereau Beaulier, Divorce / Separation Lawyer

Close Joint Accounts
If a divorce is imminent, you should immediately contact joint-credit-card companies in writing to freeze or cancel your joint accounts. You do not want to be responsible for your spouses' new credit card charges, particularly when those charges may include attorney's fees. This protects your credit. It is important to remember that, although a creditor may freeze a joint account, the outstanding balance must be paid off before the account can be closed. You may also wish to close your joint bank accounts. If any proceeds are removed, keep a carefully accounting where the money is placed or how the proceeds are spent. You will undoubtedly be asked for that accounting as part of the divorce process. You can save yourself time and money by keeping accurate records.


Establish Your Own Credit
Make sure your name is listed on all household accounts and investments. Establish at least one credit card in your own name. This will help to create an individual credit history. When you are on your own, you will have a better chance qualifying for loans, mortgages and credit cards. These are all important considerations after a divorce.

Keep Non-Marital Assets Separate
Non-marital assets are not part of the assets divided in a divorce. Instead, they are considered the asset of either the husband or the wife and generally awarded to that person in a divorce proceeding. Categories of non-marital assets include: property you inherit; proceeds from personal injury awards (eg. Worker's compensation or accident proceeds); items owned prior to marriage; and gifts to one party rather than the family. If non-marital assets are commingled with assets purchased or improved during the marriage, it may not be possible to claim the asset as yours in the event of divorce. However, some "tracing" of non-marital assets may be possible. For example, if a non-marital asset is sold during the marriage and the proceeds from the sale are used to purchase another asset, it may be possible to "trace" a non-marital interest in 48

the new asset. For example, if a car owned before a marriage is sold during the marriage and the proceeds are used to buy a new car.

Review Your Financial Holdings Regularly
Maintain complete and separate records of your financial holdings such as bank accounts, IRA's, 401K, land purchases, and stocks. This includes assets in your spouse's name as well. You may wish to maintain copies of these records at your place of employment or in a safety deposit box in your name. Records have a way of disappearing after a divorce has been started.

Time Your Divorce
The timing of your divorce may carry with it a significant financial impact. For example, in a single income family, the non-working spouse may not have earned enough money to qualify for Social Security at the age of retirement. However, if spouses are married at least 10 years and don't re-marry, the non-earning spouse may qualify for Social Security benefits based on the ex-spouse's earnings when both reach the age of 62.


Video Tape Assets
You should photograph of videotape the contents of your home including any garages, sheds or out buildings, to record the assets and fixtures contained in each. In any divorce, it is possible that one party may be required to relocate from the family residence. Once you relocate, it may be difficult to recall all of the assets and furnishings that are contained in the house. If you forget them, there is a good chance that they won't be factored into the values that each party receives in the property settlement.

Don't Leave the Marital Residence
In a custody case, leaving the marital residence may impair your ability to successfully seek custody of the children or an award of the real estate after the divorce. By relocating, you create a sort of status quo that courts are often reluctant to disturb.

Freeze or Cancel Joint Credit Cards
If a divorce is imminent, you should immediately contact joint-credit-card companies in writing to freeze or cancel your joint accounts. You do not want to be responsible for your spouses' new credit card charges, particularly when those charges may include attorney's fees. This protects your credit. It is important to remember that, although a 50

creditor may freeze a joint account, the outstanding balance must be paid off before the account can be closed.

Collect Information Related to Children
In any case that involves children, custody disputes are a distinct possibility. As a result, documents relating to your children may be critical to support your contention regarding medical issues, care during the marriage, or who was the parent providing their primary care. Some items you may wish to obtain or retain include: Family photographs including those depicting family vacations or the children's extracurricular activities; Social Security, Student Body, and State ID cards; Medical records and prescription information including the names and addresses of any treating physicians or counselors for the children or the parties; Report cards and school records.

Hire an Experienced Divorce Lawyer
It may be very important to hire a good lawyer early in your divorce planning process. An experienced attorney can help you avoid mistakes that could later cost you in your divorce proceeding. By choosing an attorney early in the process, there is less of a chance that you will be caught off guard and wind up playing catch up on the issues. There are many 51

lawyers to choose from so it is important that you ask important questions in order to choose one that is knowledgeable and right for you. Ask about their experience in family practice and specifically divorce. Ask the attorney to explain the legal issues as well as the legal process in your particular county.

Divorce And Taxes
Written by: Mary G. Commander, Divorce / Separation Lawyer

Transfers Between Spouses
Under the general rule, transfers of property between spouses and former spouses is not a taxable event if it is "incident to the divorce". If the transfer is NOT made pursuant to a written separation/divorce agreement or decree OR the transfer takes place more than 6 years after the end of the marriage, there is a rebuttable presumption that it was not related to the cessation of the marriage. The burden then would shift to the taxpayer.

Spousal Support (Alimony)
Under 26 U.S.C. Section 71, spousal support is taxable income to the payee, and a deduction to the payor. Certain requirements must be met: It must not be designated as or in 52

reality be "child support"; it must be received by or or behalf of the payee; it must end on the payee's death and it must be payable under an existing agreement or order. The parties cannot file a joint tax return, and they cannot be members of the same household.

House Payments
Especially in temporary orders, one party may be required to make payments on the former marital residence while it is occupied by the other party. If the payor spouse is the sole owner of the house and is solely liable on the mortgage that he is paying, then he cannot deduct the payment as spousal support. If both parties own the house and are liable on the mortgage, one-half will be treated as spousal support. If the payee owns the house the mortgage payments are spousal support.

Attorney's Fees
Attorney's fees that are incurred to obtain or defend spousal support are deductible. If a party is required to pay the other party's attorney's fees as "spousal support", these fees are deductible. It may be necessary to segregate out which amount of an attorney's bill relates to spousal support for tax purposes.


Tax Refunds
Nothing is held hostage so often in divorce cases as the income tax refund check. Generally speaking, just because the parties file a joint return does not mean that they are entitled to share equally in the refund amount. Instead, this is determined by the income earned by each as if they filed separate returns.

The custodial parent is the one who can claim the child(ren) as a dependent. This can be given to the other party by execution of IRS Form 8332. If both parents claim the child, you WILL be audited.


Most divorces tend to follow similar procedures. Check out the Legal Guides below to learn what to expect in the divorce process from beginning to end, both inside and outside the courtroom. Just keep in mind that there may be some variation in the process across different states. This is because the divorce process is dictated by the laws of the state in which you file for divorce.


The Complete Divorce Process
Written by: Maury Devereau Beaulier, Divorce / Separation Lawyer

Cases vary state to state
The length of your case may depend on the state and county that your case is filed in. It often depends on how crowded the court docket may be and often may take a year or more for your case to get to trial.

Before a divorce is filed, you must determine where the matter will be heard. Different states have different rules for bestowing jurisdiction. In many states, a party must have lived in that state for 180 days prior to filing. If there are two possible jurisdictions, it may benefit the party filing to serve the Divorce documents first to choose jurisdiction in their state. That is the primary benefit of serving and filing first. There is little benefit to serving and filing first other than to prepare in advance and to choose the jurisdiction.


A divorce case is usually commenced by serving on the other party a Summons and Petition for Divorce or Legal Separation. In some states, a divorce is also called a Dissolution of Marriage. Service in most states must be complete by actually personally serving the other party or a person who resides in their home who is considered to be of suitable age and maturity. In most states, a party may not serve their own divorce papers. The Summons is a generally document announcing that a divorce or legal separation action is being commenced. In some states, that document also indicates that from that point forward neither party may dispose of marital assets, change insurance coverage or modify any other significant holdings except for the necessities of life.

The Petition has two parts. The first part is a statement of facts which sets out basic facts such as the identities of the parties, whether they have children and what assets they may hold. The second part of the Petition seeks relief such as an award of custody, spousal maintenance or child support and a division of assets and debts. The Petition is often tailored to seek the maximum relief. It is a positioning paper 57

that will often seek as much relief as the proponent could possibly seek.

Answer and Counter-petition
The opposing party has thirty (30) days in most states to submit an answer to the petition. The Answer is very simply the opposing party’s statement of facts and their request for relief. Often the service of an Answer is waived. This is often done to save the parties the cost of an additional filing fee should the matter be settled. However, if a waiver or extension is not granted by the opposing party and an answer is not filed within thirty (30) Days, the original party may seek a default. A default means that the original moving party may request the relief requested in their petition without opposition. Late answers are often accepted since Courts prefer determining cases on their merits rather than by default.

Temporary Hearings
A temporary hearing may also be called a “Pendente lite hearing”. Such hearings may be scheduled by either party by filing a Motion supported by an affidavit.


Temporary/Pendente lite hearings are designed to resolve issues while the divorce is pending such as who will have temporary custody; temporary support and/or maintenance; where the parties are going to reside pending the resolution of the case; protection from harassment and domestic violence; injunctions against financial improprieties; use of assets. In most states, temporary hearings should not affect the final outcome. However, from a practical perspective, temporary hearings can be very important since Courts often favor a policy of maintaining the status quo. Temporary orders may be changed if there is a substantial change in circumstance during the pendency of the divorce to make the change in the temporary order necessary.

Many courts require the parties to attempt to mediate their disputes before the matter is submitted to the Court. One exception to this rule may be where domestic abuse has occurred. Mediation may occur between the parties of with attorneys present. Mediation means that the parties visit with a qualified neutral who will attempt to get them to resolve their differences. In mediation, the neutral is not an advocate and still not provide legal advice. Most discussions that occur in mediation are not admissible in Court under the public policy consideration that favors a free exchange of 59

information between the parties to help them resolve their differences.

Co-parenting Classes
Many states have adopted a policy that requires parents to attend co-parenting classes where children are involved. The goal is to teach parents how to minimize the impact of children involve in a divorce. In most cases, the parents need not attend together. Some states also require that children of a certain age attend a class to teach them the skills to deal with divorcing parents. This is not embraced in all states and is primarily found in Northern states.

Advance Case Review
Many states have a hearing that is called an advance case review or early case resolution meeting or Case Management Conference. In such a hearing, the parties meet with the Judge assigned to the case or a referee to discuss the issues, or what discovery may be necessary. This is the parties first chance to resolve the case or portion of the case.

Discovery refers to the "investigation" phase of the case. It is primarily dedicated to identifying the contested issues, a


determination of assets, income and debt of the parties. This exchange of information can be conducted informally with eth parties agreeing to freely exchange the information or formally, through the submission of formal documents that require answers under oath.

Interrogatories refer to a form of discovery where written questions are submitted to the opposing party to a lawsuit. These questions must be answered in writing under oath or under penalty of perjury within a specified time (usually 30 days). Objections may be made to questions that are overbroad or unlikely to lead to admissible evidence. Most states limit the number of interrogatories that may be asked without the court's permission to keep the questions from being a means of oppression rather than a source of information.

Document Requests
A request for production is another part of the discovery process. Either party may send a request to an opposing party or witness for relevant documents related to the proceeding. You may wish to review our list of Documents that may be relevant to your case. Generally, documents requests require that the party served provide any and all 61

documents requested that they have in their possession within a specified period of time (usually 30 days). If you do not possess the documents requested, you do not have to acquire them if it is not easy to do so. The opposing counsel may acquire those documents through other remedies such as subpoena or by having a party sign a Release of Information.

Releases of Information
The opposing party may send a release of information to the other party seeking to acquire documents from a third party that is relevant to the case. Examples of documents that may be requested include bank statements, medical records, financial records, work schedules and income information.

Requests for Admissions
Either party may submit to the other a Request for Admission seeking admissions on certain facts relevant to the proceeding. Much like interrogatories and document requests, the responses must be returned within a specified period of time and must be made under oath (notarized).

A deposition can be a more expensive form of discovery. It allows a party to subpoena and depose any individuals who 62

may have information relevant to the case. This includes parties and non-parties alike. In a deposition, the party being deposed appears at the attorney’s office or a neutral location to answer questions put by the other side's attorney regarding the facts of the case. Depositions are under oath with a court reporter present so that everything that is said is recorded. A deposition is scheduled to pin a witness down to certain facts and to discover all possible documents and witnesses related to a case.

Failures to provide discovery
The penalties related to a failure to respond to discovery or to appear at a deposition may be severe. The opposing party may file a motion to compel discovery and/or seek sanctions related to that failure. Severe sanctions may include establishing facts related to a case. That means that the Court disallows an opposing party from presenting an evidence or testimony at trial to contest an issue where discovery was not provided. Default is the most severe sanction where the Court allows a party to proceed as if the entire case or any individual issue is uncontested. The Court may also award attorney’s fees to the party that submitted the unanswered discovery. If you require additional time to respond to discovery, you should request the same in writing including a specific time line when it can be completed. 63

Experts are often employed to determine certain facts. Those experts may be jointly agreed upon by the parties, which can save on the cost of having individual experts testify at trial. However, where that is not possible, each side may hire an expert to contest an issue and require their testimony at trial. Common experts include: custody evaluators; financial planners to determine future economic circumstances; business evaluators to value businesses; real estate appraisers to value real estate; personal property appraiser to value furnishings and other assets (generally an auctioneer experience d in home goods); vocational evaluator to determine earning capacity; psychologists to testify to mental health issues.

A divorce or legal separation case may be resolved at any time the parties come to an agreement on the issues. In such cases, the parties would sign a Marital Settlement Agreement or some other form of stipulation resolving their issues. This can occur right up to the point of trial. 64

If you are unable to settle your case with your spouse, it will go to trial. Some states have a trial by jury. Other states have a trial by judge. At trial you each tell your story to the judge. It is told through your testimony, the testimony of other witnesses, and documents called exhibits. st trial, the moving party (usually called the petitioner or plaintiff) presents their case first. The call their witnesses who are subject to crossexamination by the opposing party. When the plaintiff or petitioner rests their case, the Respondent or Defendant presents their own case with witnesses and evidence, each subject to cross examination by the opposing party.

After a divorce, either party has a right to an appeal if they disagree with e Judge’s ruling. The time lines for appeal are severely limited. As a result, you should consult with a lawyer in your state regarding those time lines.

Whether the issues in your divorce are settled by you and your spouse or are decided by a judge, some things in your judgment can be modified (changed) by a judge after a


hearing. Usually, child support, alimony, child custody, and child visitation can be modified, but only if one of you can show that there has been a change in circumstances.

If you or your spouse disobeys an order that the court makes in your divorce judgment, you may file a Motion to compel compliance. Such motions are generally for contempt and require the service of an Order to Show Cause and a Motion.


Property Division
Depending on how contentious your divorce is, the process of dividing all of your marriage assets can be anywhere from relatively painless to extremely complicated. Thankfully, most divorcing couples are able to reach an agreement on their own without resorting to legal warfare. Here you can learn the basics of how property, other assets, and debts are divided in a divorce.


Community Property Division vs. Equitable Property Division in Divorce
The issue of how to divide property comes up in most divorces, which is why it’s important to know if you live in a community property state or an equitable property state. The way your state handles property division depends on which of these property systems apply. The exceptions to this happen when there was a prenuptial agreement, or if the parties to the divorce draft an agreement that divides the property according to those specific terms.


Equitable property
Most states are equitable property states (or separate property states). Under the equitable system, a court divides marital property according to what it considers to be equitable, or just, to both parties. This is why an equitable division isn’t necessarily always a 50-50 split. In some of the rarer circumstances, one spouse can end up with almost all of the assets if this is what the court deems as fair. In equitable property states spouses are generally awarded property in proportion to how much they contributed to the marriage. Often, the spouse who earned more will receive the larger portion of the property and assets because they contributed more financially to the union. However, a court often balances things out by taking other factors into consideration as well. Some of examples of these factors include the length of the marriage, the earning potential of each spouse, the standard of living established during the marriage, the value of a stay-at-home spouse who took care of the children, etc. The court evaluates the financial ability of each spouse when considering marital debt and liability distribution.


Community property
Community property law only applies to these nine states: California, Arizona, Idaho, Nevada, Louisiana, New Mexico, Wisconsin, Washington, and Texas. (Puerto Rico also falls into this category.) In a community property state, a court looks at all assets that were acquired during marriage and then divides them equally between the spouses during divorce. All assets are divided equally regardless of who owns title to them. For example, both spouses are considered to own all money equally even if one spouse doesn’t work. The only time when marital assets aren’t split equally is if a prenuptial agreement was in place. In addition, community property laws also apply to all joint debts and liabilities because these count as marital property. This means that all debts and liabilities are equally divided between both spouses.


What is Non-Marital Property?
Written by: Maury Devereau Beaulier, Divorce / Separation Lawyer

In a divorce, some assets may be considered non-marital and, as a result, are not divided in a divorce proceeding.

What is the marital estate?
In a divorce, the parties divide up what is called the "Marital Estate." The marital estate includes any assets or debts that the parties own at the time of the divorce. Each spouse is deemed to have an equal interest in marital assets or debts. This is true no matter how property is titled or held and no matter which spouse's job paid for the asset or which party incurred the debt. That means the marital estate includes a 401K account or credit card debt that is in your spouse’s name alone. In fact, marital property is inclusive and encompasses 401K plans, stock plans, stock options, real estate, frequent flier entitlements, bank account proceeds, couches, chairs, cars, utility debts, credit card debts and any other form of asset or liability.


What are categories of non-marital assets?
Some states have classifications of property that are exceptions from the marital estate that is divided. These assets are often called non-marital assets. Any non-marital assets that you possess remain yours and any non-marital assets of your spouse remain his/her assets. Among states that take this approach, some listed non-marital classifications include:  Premarital. Any asset acquired before the marriage (if the asset was encumbered by a loan that was paid off during the marriage, it may only have a partial nonmarital value).  Prenuptial Exclusions. An asset excluded by a valid prenuptial agreement;  Personal Injury Proceeds. Personal injury settlements are generally considered personal to the injured party and are non-marital in nature. Some states also include Social Security benefits, Worker's Compensation and Disability in this category;  Inheritance. Any proceeds or assets from an inheritance;  Gifts. Any asset acquired as a gift to one, but not both.


Losing Non-Marital Status
It is possible for non-marital assets may have both a marital and non-marital value. In some cases, non-marital assets may lose their non-marital characteristic. This can occur in several ways:  Commingling: If non-marital proceeds are comingled with marital proceeds so that is becomes difficult to identify the non-marital asset, the nonmarital characteristic may be lost. For example, placing non-marital proceeds in a joint bank account may not immediately eliminate a non-marital interest. However, if marital proceeds are added to the bank account or if proceeds from the account are paid out for regular living expenses, it is more likely that the non-marital value will diminish since it is impossible to determine which proceeds came out first - the marital proceeds or the non-marital proceeds.  Marital Improvements: Additionally, spending marital money (any money earned by either party during the marriage) to improve a non-marital asset may also create a partial marital interest in an otherwise nonmarital asset. The increase in the value of the asset attributable to the improvement is likely to be considered marital. 73

Appreciation: The Courts make a distinction between "active" and "passive" appreciation. Passive appreciation of a non-marital asset remains nonmarital. Passive appreciation occurs when an asset increases in value without any action by the parties. For example, if the value of real estate increases without the parties improving the property, it is considered passive. Active appreciation is a marital asset. Active appreciation occurs when the value of an asset increases because of an act by the either of the parties during the marriage. Capital improvements to real estate during a marriage may create a marital interest since a capital improvement is likely to add to the property’s value. Manipulating a stock account or transferring a mutual fund from one account to another resulting in an increase in value may also be "active appreciation" which creates a marital interest in an otherwise non-marital asset.

Tracing Non-Marital Value
Non-marital assets may often be "traced" into later acquired assets giving the party with the original non-marital interest a non-marital interest in the new asset. For example, if one spouse owned a vehicle before marriage and that vehicle is later traded in for a new vehicle during the marriage, that 74

party may be able to trace a non-marital interest in the new vehicle. Tracing is really the process of establishing a sufficient paper trail to claim a non-marital interest in a subsequently purchased asset. Often, presenting a persuasive property case depends on clear cut documentation, and expert testimony.

Divorce Property Settlement: Tips for Property Division
Every divorce has unique factors, but nearly all divorces involve many of the same issues, such as property division. Although property is one of the biggest sources of disagreement in divorces, the vast majority of divorcing spouses are able to reach a compromise outside of court. In general, you’re more likely to be satisfied with your property division if you negotiate it yourself. If you and your spouse can’t come to an agreement then a judge will make the decisions for you. Remember that no one knows better than you what your financial needs are and how best to meet them, so it’s probably prudent to see if you can work out an agreement yourself. Here are some common


negotiation guidelines that can help you reach a property settlement without litigation.

Preparing before negotiation
 Review your state's property laws. Before you sit down at the negotiating table, you may want to take a look at your state’s property divorce laws. Knowing what you’re lawfully entitled to will help you ensure that the division is fair when negotiating the terms of the agreement.  Define your financial needs. Next, consider your financial needs, and define your overall goals for the negotiation. Major components of your financial need include: your income, earning capacity, age, health, number of children, retirement plans, etc.  Know where you stand financially. It’s also important to look at your asset-to-debt ratio. You may or may not be legally liable for debt incurred during your marriage, so it pays to be informed. If you are liable for the debt, the creditor will still require you to pay even after your divorce. Getting a complete picture of your true financial situation through an inventory will help you establish a good benchmark of what to expect. Typically, the division of property includes assets like your marital home, household items, 76

vehicle(s), insurance, retirement plan(s), any businesses, securities (stocks, mutual funds, bonds, CDs, etc.), cash, and collections and other valuables. Using a property checklist can help you take a complete inventory of everything. Attorneys usually have these checklists, so make sure to ask yours for one.

The negotiations
 Traditional negotiations. Traditional style negotiations usually involve each spouse’s attorney. Each side presents their respective interests until an agreement is achieved. The negotiations may span several meetings between both parties and their lawyers. In difficult cases when the parties are unable to agree, the lawyers may draft the terms and negotiate on behalf of their clients.  Mediation. This process is a good choice because it is non-adversarial, thereby allowing a husband and wife to come to an agreement on their own through the assistance of a neutral third party. Usually the third party has experience with conflict resolution and can help reduce hostilities significantly on both sides.  Collaborative divorce. Both parties sign an agreement beforehand which commits them to reaching a 77

settlement; if a settlement is not reached then the lawyers withdraw from the subsequent litigation. The parties may use experts or specialists to help them reach mutual agreement on issues.  Other alternatives. If you and your spouse just can't agree on how to split the property, then you may find these other methods useful (like silent auctions, taking turns from a list, etc.).

Dividing Property in a Divorce: Who gets the Family Home?
Written by: Suzanne Griffiths, Divorce / Separation Lawyer

Always check your state's specific laws
How courts determine which party gets the family home varies state to state. Remember to always check your state’s specific laws. For example, a Colorado court may rule differently on the matter than a court in another state. All of the following scenarios are examples of how a Colorado court could handle allocation of the family home.

Parent with primary care of children
When considering the division of property, courts consider the economic circumstances of each spouse at the time the 78

division of property is to become effective. The Court must consider the desirability of awarding the family home or the right to live therein for reasonable periods to the spouse with whom any children reside the majority of the time. Therefore the parent who has primary care of the children has the advantage.

Financial feasibility
A court may also consider whether it is financially feasible for the primary parent to maintain the home, refinance the mortgage and pay the obligations related to the home.

No fault divorce vs. fault divorce states
Whether your state is one that grants divorces based on fault, could possibly affect the court’s decision. For example, Colorado is considered to be a “no fault” state. What this means is that if one of the parties is having an affair or has abused the other, the court cannot take that information into account when allocating the assets. However, a court in a state that allows divorces based on fault might possibly assess the situation in a different way.


Gift, inheritance, or owned prior to marriage
If the family home in a divorce was received by gift, inheritance or was owned before the marriage then it will generally be awarded to the spouse who received the gift or inheritance or who owned the home prior to marriage.

Additional factors
Other factors that a court will consider in allocating the family home include the contribution of each spouse to the acquisition of the marital property, including the contribution of a spouse as a homemaker.

Dividing Retirement Plans in Divorce
Written by: Maury Devereau Beaulier, Divorce / Separation Lawyer

Deferred compensation refers to pension plans, 401K plans, IRAs and other retirement assets. Such plans are divisible as part of a property settlement in divorce regardless of which party is named on the plan. How they are divided depends on the value and nature of the asset. Perhaps one of the worst scenarios in a divorce is when retirement assets are transferred to a former spouse but the original owner is


liable for liable for the taxes, including penalties for early withdrawal.

Types of Retirement Assets
There are three main kinds of deferred compensation plans. 1. Savings plans include retirement assets such as IRAs, 401(k) Plans, ESOPs, and Thrift Savings Plans. 2. A defined contribution plan is one in which the value of the plan is determined in part by the amount of contributions made into the plan. The money contributed may be invested and grow. 3. With a defined benefit plan, an employee is provided a monthly payment starting at retirement age and ending at the end of his/her lifetime.

Dividing Savings Plans
Dividing Savings Plans: Savings plans such as an IRA are considered "cash" plans since they may be liquidated before retirement age. They are divisible as part of a divorce. However, before any division may occur, a custodian of the account must receive and review a certified copy of the court order dividing the plan. Additionally, the spouse receiving a portion of the plan must fill out documents relating to the manner of payout.


IRA proceeds may be cashed out and paid directly to the receiving spouse or they may be "rolled" over into a new IRA in the name of the receiving spouse. However, the tax consequences related to cashing out the plan may reduce the plan proceeds by more than thirty percent (30%) for taxes and early withdrawal penalties.

Dividing Defined Contribution Plans
Valuing and Dividing Defined Contribution Plans. The valuation of a defined contribution plan can be determined by multiplying the account balance by the percentage of vesting. This is a relatively simple way to value the plan and determine marital value. Generally, such plans may be divided currently with each party receiving one half of the current vested value.

Dividing Defined Benefit Plans
Valuing and Dividing Defined Benefit Plans. With a Defined Benefit Plan, generally the participant's benefits cannot be liquidated prior to retirement age and the non-participant spouse may receive a retirement plan in her name representing her marital interest in the participant's plan. This plan is generally subject to the same terms and conditions of the original plan. 82

Often, the Participant may choose a payment method from several options. The chosen method will affect the amount or timing of the payments to both the participant and any receiving spouse. This may mean that retirement benefits are received when the original participant decides to retire, not when the recipient spouse retires. A defined benefit plan may be divided in one of two ways: 1. Cashing Out/Present Value Calculation. First, a recipient spouse may elect to receive money effectively cashing out his/her interest in the plan. To cash out, a present value of the plan proceeds must be determine. "Present Value" is the current value of a future benefit. In simple terms, a dollar that you receive today is more valuable than a dollar you receive next week since you may invest the dollar or deposit the dollar and accrue interest. Therefore, retirement benefits that are received at retirement age would have a lower value if paid in a lump sum currently. Often, a calculation or of present value requires an actuary or accountant.


2. Division of Future Benefit. Rather than using a present-day cash value, a defined benefit plan may be divided by dividing the future stream of income. This is accomplished by drafting a Qualified Domestic Relations Order (QDRO). This is a court order which instructs a pension plan to pay an Alternate Payee (or former spouse) a portion of retirement benefits accrued by a Participant due to an equitable distribution agreement in a divorce. With this method, the court retains jurisdiction until the benefits are paid.

Dividing a Business in a Divorce
Property division in divorce can become fairly complex if one or both of the spouses owns a business. The income generated by a business is usually significant, so there’s often some conflict over who gets the business, or how it will be divided in the divorce settlement. Even if the business belongs to only one spouse, chances are that the business counts as marital property, which is why it’s still subject to a divorce property settlement.


Business valuations
One of the first and most important steps to take is to get a business valuation. Even if your soon-to-be ex tells you that they’ve been earning X amount from the business every year and that the business is worth Y amount, don’t take their word for it. Always keep in mind that they don’t necessarily have your best interests at heart, so you should take basic precautions to protect yourself. This includes getting an independent appraisal, or engaging a joint appraiser with your spouse. Calculating the value of a business isn’t exactly a science, which is why in most cases two different appraisers will assess different values to a business. However, the Institute of Business Appraisers (IBA) and the American Society of Appraisers (ASA) have issued standards for valuing businesses, which means that appraisers tend to follow a similar general procedure. This helps ensure that even if two different appraisers arrive at different values, the two value amounts should be fairly close to each other.


What actually happens to the business?
Here are some common scenarios for businesses after a divorce:  One spouse buys the other one out. One spouse gets the business, and makes payments over time to the other to compensate financially.  The spouses separate different facets of the business. Each spouse receives a part of the business to operate how they want. For example, a couple with 2 different branches of a business may choose to divide the business so that each gets one branch office.  They keep working together. Sometimes couples are able to remain business partners even after a divorce, but this is fairly rare. No matter the size of the business, it’s always a good idea to engage an attorney who is experienced in complex property issues to help you determine what’ll happen to the business in your divorce.


Divorce Debt and Credit Issues
It is a common misconception that a court in a divorce can relieve one party from the financial obligations incurred during the marriage. Although the Court may require one party to pay a joint debt, that ruling does not prevent a creditor from pursuing either party for an unpaid debt. The creditor is not a party to the divorce action. The Court has no authority to modify the terms of the contract that was executed with the creditor. Even in cases where the parties have an amicable relationship and reach an agreement on the issues, danger lurks. Problems with joint debts are often the result of mistakes and ignorance rather than an intent to harm the other party. As a result, if you aren't careful to protect your rights as part of your divorce and if you do not place protections into a divorce agreement, your finances may be adversely affected for years.


 Even a debt that is current may affect your ability to qualify for new credit since the outstanding debt will appear on your credit report;   Unpaid joint debt may adversely affect your credit rating and impair your ability to acquire new loans; An unpaid joint debt may result in collection efforts and costly court appearances; • An unpaid joint debt may result in the entry of a Judgment against you;  An unpaid joint debt may result in garnishments or liens.

How can I avoid these difficulties?
 Pay Off Debt. Any joint debts should be paid off. This is the most practical and bullet proof solution. If the parties do not have the liquid resources to pay off existing joint debts, they may wish to consider selling other assets or tapping into other financial resources to settle the debt. Obviously, this is the most effective way to eliminate the debt and prevent future collection issues.  Transfer Debt. Joint debts may be divided by transferring the debt solely into the name of the party responsible. This can often be accomplished by


satisfying the debt with a credit card in that party’s name. This may be more difficult with larger obligations like a homestead mortgage.  Sell Assets. Sell any assets that are encumbered by a joint security interest. This specifically includes real estate. It is important to remember that transferring the title of the asset into one person’s name does not eliminate responsibility for the debt. If you take your name off of title, whether the asset is a car or a house, you are removing ownership but not loan responsibility.  Refinance the Debt. Have one spouse refinance the home in his/her own name. If one spouse is going to keep the house, you should insist upon new financing. The mortgage company will not simply remove one party from the responsibility for the loan. As with any new financing, the party seeking to refinance will be required to qualify financially. Often, the financial impact of the divorce may make qualifying difficult. In such cases, it may be possible to find a relative willing to co-sign on the new loan.  Include Protective Language. Clearly, the best way to resolve joint debt issues is to eliminate the debt or the joint nature of the debt. Sometimes, however, those options are impractical. In such cases, you must be 89

very careful to place protective language into the divorce agreement or to specifically request protective language from the Court at trial. This is a last resort and an imperfect way to resolve joint debt issues. Often, protective language allows recourse against a party that fails to pay court ordered debts, but does not prevent damage to other party’s credit. The language used must be carefully crafted to comply with state and federal law. Any omission may result in language that is unenforceable and ineffective.

Protective language may include:
 Requiring the party obligated on the joint secured debt to remain current and in the event that a payment is not made in a timely matter, require that the secured asset be placed immediately on the market for sale;  Allowing the party that is not obligated to make payment on any delinquent debt in order to protect his/her credit rating and to seek reimbursement in addition to interest and attorney’s fees from the other party;  Establishing the allocation of joint debts as an integral part of the financial settlement and support payments 90

in the divorce proceeding which renders the debts non-dischargeable in bankruptcy.

Understanding Bankruptcy and Divorce
Written by: Richard George Fonfrias, Divorce / Separation Lawyer

Spouses often use bankruptcy differently
Some spouses use bankruptcy after a divorce has been finalized as an offensive weapon to delay or prevent having to refinance a mortgage. Other couples file bankruptcy before a divorce to simplify the debts before they separate. So how you use bankruptcy depends on your goals in the divorce. Generally it’s wise to file a bankruptcy before divorce so you know how the debts are going to be handled. When one spouse files a bankruptcy after the divorce, creditors usually come after the other spouse to satisfy jointly incurred marital debts. This means that one spouse’s bankruptcy filing could send the other spouse into bankruptcy.

The bankruptcy includes everything
Your bankruptcy estate is everything you own and owe at the time the bankruptcy is filed. When spouses file bankruptcy, all property acquired during the marriage is 91

included and potentially available to pay debts. Your bankruptcy estate is everything you own at the time the bankruptcy is filed. Once the bankruptcy is filed, the court issues an immediate stay to stop creditors from collecting debts. Your spouse will still have to pay child support or alimony; however, they may not have to perform other tasks, such as refinancing to remove one spouse from the mortgage. I am involved in a case now where the wife is under a court order to refinance and remove her husband’s name from the mortgage. For the last several years she has not complied with the order. The wife filed a bankruptcy to restructure her debts and the divorce court is powerless to force her to complete the refinance.

Property settlements
Whether the bankruptcy court discharges a divorce property settlement will depend on whether the debtor can show they cannot pay the debt and still take care of themselves, their dependents, and their business. Generally, property settlements are not dischargeable in bankruptcy. Exempt property is protected and not available to be sold to pay debts. Each state where a bankruptcy is filed has its own


exemptions. For example, in Illinois each filing spouse can “exempt” $15,000.00 of home equity.

Protect Yourself
An effective way to protect yourself against your spouse filing a bankruptcy is to take lien on property your spouse gets in the property settlement. This makes you a secured creditor. If later, they file a bankruptcy you can repossess the property to pay the debt.

Hidden Assets and Divorce
If you know you’re going to be getting a divorce soon, then you may want to start tracking marital finances. Not only is this necessary to your divorce, it’s also a prudent measure to take so you can see if your spouse has any hidden assets tucked away. Being attentive to the relevant financial details can help ensure that your divorce settlement is fair to you.

Overview of hidden assets
A hidden asset is one that isn’t readily visible in normal accounting records because all usual signs of ownership have been concealed through complicated measures. Diligence and thorough preparation go a long way towards tracing assets which are deliberately disguised by a spouse. 93

Information and involvement are critical for discovering hidden assets. Hidden assets are mostly liquid in nature; examples are bank accounts, stocks, bonds, and mutual funds. The reason why they’re usually liquid is because this type of asset can be easily transferred into the name of a relative, friend, or business entity. Sometimes the funds are transferred into accounts in offshore banks where they cannot be touched under the laws of the country of residence.

Hidden assets and divorce settlements
Hidden assets are especially important in divorce settlements because one of the parties in a divorce may have tried to hide certain assets. If a court doesn’t know about an asset, it can’t force that person to share it with their spouse. Since both spouses lawfully have claim to all marital property for purposes of a divorce settlement, hiding assets is illegal.

Tracking down hidden assets
A good way to start the task of tracing hidden assets is to establish a methodical plan to study all financial records. In general, look for things that don’t add up. For example, if an asset is initially present in documents but suddenly seems to have disappeared then it’s possible that it was diverted into 94

some other unknown account. Here are more examples of good places to look. Old financial statements may help identify suspicious transactions. ATM activity can throw light on cash which may have been placed in some hidden account. In particular, getting a credit report on your spouse is a good idea because it may contain information on financial accounts or credit unknown to you. Some clues to find hidden assets:

Income that isn’t reflected on financial statements and tax returns. Cash kept as travelers checks: Locate by tracing bank account deposits and withdrawals. A custodial account set up in the name of a child. Investment made in certificate "bearer" municipal bonds or Series EE Savings Bonds: Since these are not registered with the Income Tax Authorities, they do not appear on account statements.

 

Artwork, antiques, gun collections, hobby equipment, original paintings, expensive carpets and tools: Have everything appraised, and don’t forget to check your spouse’s work office for items.


Debt repayment to a friend which actually was never a debt. Delayed disbursements of bonuses, stock options and accounts receivables till after the divorce. Expenses incurred towards gifts, travels, tuition fees or rent of a friend. Retirement accounts that were never disclosed. Deliberate devaluation of property: Allowing rental property to remain vacant or unrepaired so that divorce allocation is done on the basis of the devalued price.

 

Payment of excess income tax and subsequent filing for the tax refund after the divorce.

If you are fairly sure that your spouse has hidden assets, then it may be a good idea to engage an experienced attorney to help you find them.


Many divorcing spouses have questions about alimony (a.k.a. spousal support), usually regarding whether it has to be paid and how much money it involves. What isn't so widely known is that spousal support is becoming a thing of past because men are no longer the usual sole breadwinners. Learn about the basics such as the following: the types of spousal support awarded, factors of spousal support, enforcement, and termination of spousal support.


Paying Alimony (Spousal Support)
Alimony, also known as maintenance or spousal support, refers to payments made by one spouse to the other after a couple divorces. These payments are for living expenses and/or child support. Payments usually end upon the death of either spouse, or a date spelled out in a divorce decree or settlement agreement. They may also end if the spouse receiving alimony remarries or moves in with a new partner. The amount of alimony you will pay depends on many factors, including state law, which varies. An attorney in your state who specializes in divorce should be able to give you an estimate of how much alimony you are likely to pay. In general, your alimony payments will be set depending on a number of factors: your age and health, your income, your spouse's income and other assets, the length of the marriage, whether one spouse stayed home to raise children for a time, who will have custody of the children (if applicable), and what assets each spouse is keeping, among other factors.

What alimony can mean for your taxes
Alimony payments are tax deductible for the person making the payments and are taxable income for the recipient. Be 98

sure to consider the tax impact when calculating the true cost of your alimony payments. To qualify as tax-deductible alimony, the payments must be in cash and must be spelled out in a written divorce agreement or decree. You can't file a joint tax return or be living together and claim a tax deduction for alimony.

Failure to pay alimony (alimony enforcement)
The consequences of failing to pay the alimony outlined in your divorce vary from state to state. However, if you do not pay alimony, your spouse can sue to get the payments. You could be held in contempt of court (which is willful disobedience of the court's rules or orders) or even jailed. You also may have to pay your spouse's court and attorney costs related to pursuing the alimony payments. For instance, the IRS may deduct unpaid child support from any tax refund or overpayment owed you and give the money to your spouse instead, but won't take the same action for unpaid alimony.

Alimony Pendente Lite
Alimony pendente lite is alimony paid after a couple separates until the divorce is final. It is designed to provide support during the divorce process so each spouse can 99

maintain his or her standard of living. Alimony pendente lite is also referred to as temporary alimony or temporary spousal support.

Facts about alimony pendente lite
When a couple separates, their financial situation changes. A spouse may have basic expenses, such as a mortgage, that he or she can't afford alone. Alimony pendente lite helps a spouse cover expenses and maintain his or her former lifestyle until the divorce is settled. The spouse with the greater income may provide a monthly payment or pay the necessary bills. Alimony pendente lite may also be used to help pay the dependent spouse's legal fees. Pendente lite is Latin for "pending legislation." As the name suggests, alimony pendente lite legally ends when a divorce is final. However, alimony pendente lite often becomes the alimony awarded in the divorce settlement.

How alimony pendente lite is determined
The amount of alimony pendete lite is determined by the couple's current situation. A court looks at the needs of the dependent spouse, the means of the supporting spouse, and 100

the amount required for each spouse to continue living as they had during the marriage. The amount awarded should be enough so that each spouse can live equally comfortably until the divorce is final.

If you seek alimony pendente lite
You and your spouse can come to a voluntary agreement regarding alimony pendente lite. You may negotiate a set monthly amount or divide up expenses. Your lawyer should review your agreement before you sign to make sure the conditions are fair. Once a judge signs the agreement, the terms are binding. If your spouse provides little or no support, the court can order an alimony pendente lite award. You must file an application for temporary alimony and provide documentation of your income, expenses, and way of life. Generally, the court reviews your information and makes a decision within a few months of your initial application.

Rehabilitative Alimony
Rehabilitative alimony is short-term alimony paid to a spouse until he or she is self-supporting. The spouse can use the payments to acquire new job skills and cover expenses until 101

he or she finds employment. The amount and duration of rehabilitative alimony varies according to the particular circumstances of the marriage and by state.

Facts about rehabilitative alimony
Often during a marriage, one spouse has to leave the workforce or pass up career opportunities in order to raise children, manage a household or assume other family responsibilities. If a marriage dissolves, the spouse may be at a disadvantage when reentering the job market. Rehabilitative alimony gives the spouse a chance to become more marketable and regain the opportunities he or she lost. It can pay for education, job training, or whatever it takes to make the spouse more employable. The court awards rehabilitative alimony for a fixed amount of time, typically one to five years. The divorce settlement usually lists its specific duration. When rehabilitative alimony is due to end, the court may set a date to review the spouse's current situation to see if an extension is required. Either spouse may request to modify rehabilitative alimony if there is a substantial change of circumstances. Rehabilitative alimony is not intended to equalize the financial situation between spouses. It is a way to help the 102

dependent spouse become self-supporting in order to maintain a reasonable standard of living.

How rehabilitative alimony is determined
Courts look at many factors when considering rehabilitative alimony awards. Some of these are:
   

Length of the marriage Age of dependent spouse Earning capabilities of dependent spouse Length of dependent spouse's absence from job market Time and expense necessary to educate and train dependent spouse

If age, illness, disability or other factors prohibit the dependent spouse from finding suitable employment, the court may award permanent alimony.

If you seek rehabilitative alimony
Rehabilitative alimony should be part of your divorce settlement. You may have to outline what you'll do to gain financial independence in order for the court to consider an award. This may include the steps you need to take, the payments necessary to complete those steps and the length of time you need to be self-supporting. 103

Factors Affecting Spousal Support (Alimony) Awards
Divorce is not only an emotionally painful experience, but can also be financially devastating for a dependent spouse. A spousal support (alimony) award can help ease a dependent spouse’s transition out of the marriage.

Evolution of Alimony
Historically, marriage made a husband duty-bound to support his wife, and that duty did not end even if the marriage did. However, alimony was tied to the idea of “fault.” If the divorce was due to the woman’s fault (adultery, abandonment, etc.), then she did not receive alimony. Today, all states, with the exception of New York, have adopted no-fault divorce laws. About half the states do still consider fault as part of spousal support determinations, although Kentucky only considers fault on the part of the person requesting spousal support. As a result, spousal support awards are now based on other facts about the marriage.


Factors Courts Consider in Alimony
The US Supreme Court ruled in the 1970s that men are also entitled to receive alimony, so today either spouse may ask for support during a legal separation and after a divorce is finalized. Temporary support granted during the separation does not automatically continue after the divorce. In today’s world, courts are moving away from awarding spousal support, but state laws vary greatly. Some states have strict rules, such as upper limits on amount and duration, while others are more lenient and still allow lifetime alimony. When considering alimony, courts may take into account the following factors: Ability to pay: This is the courts biggest consideration in setting an alimony award, and ability is calculated based on net income.

Length of marriage: The longer you've been married, the more you've theoretically put into the marriage, and the greater the likelihood of the court awarding alimony.


Children: Children's welfare is of great importance to the court, which may decide it's best for them that the custodial parent not work full-time, especially if they are young and daycare options limited. Slightly more than half of states consider whether the person requesting alimony is the custodial parent. Standard of living during marriage: Most states try to ensure that both spouses can maintain a similar standard of living after divorce, if possible. Ability to earn: Courts look at what both spouses currently earn as well as their future earnings potential. If one of you expects to earn significantly more in the future, this could affect the size and/or duration of alimony. Ability to self-support: Courts consider the petitioning spouse's marketable skills and ability to work outside the home. If you can work but did not do so during the marriage, you may receive temporary alimony to ease the transition to selfsupport. Being unwilling to work is not the same as being unable, and the courts may deny or reduce alimony if you refuse to find work. Emotional/Educational Support: If one spouse supported the other through schooling or other difficulties, the courts may take this into 106

consideration and award alimony as a kind of compensation for this previous support. Because state laws differ greatly, consulting an attorney is a good idea so that your interests are protected adequately.

Alimony (Spousal Support) Modification
Alimony (Spousal Support) Modification is a court-ordered change in spousal support. It occurs most often if there is a substantial change of circumstances in the supporting spouse's ability to pay, or in the needs of the recipient. Modification can increase or decrease the amount or length of an alimony award. Regulations about alimony modification vary from state to state.

Reasons for alimony modification
A variety of events may call for an alimony modification. These include:

An increase or involuntary decrease in the supporting spouse's income An increase or decrease in the recipient's income An increase in the cost of living A disability that affects either spouse

  


A financial emergency (for example, a large medical bill) that affects either spouse The recipient's loss of his or her home The recipient's cohabitation with another person The remarriage of the supporting spouse A change in state laws

   

Alimony ends at the death of either spouse. In most states, alimony may also end when the recipient remarries or registers as a domestic partner unless terms for continuing alimony are included in the divorce settlement.

The process of alimony modification
Either party can petition the court for alimony modification at any time. In most states, if there was a modification in the past, a new petition can't be filed for a set period of time. To revise alimony orders, the court first must rule that there has been a change in circumstances. The court looks at the recipient's needs, the recipient's ability to provide for those needs, and the supporting spouse's ability to maintain the recipient's standard of living. The party that petitions for modification bears the burden of proof in court. That means the petitioner must fully disclose


his or her financial situation, including tax records, before the court examines the other spouse's financial situation. If the parties reach an agreement, a judge can approve a modification without going to trial. Both parties may need legal counsel if the case goes to trial.

Other means of alimony modification
Former spouses may include a provision in their divorce settlement that specifies when and how alimony can be modified. They may attach a cost of living adjustment (COLA) clause that increases alimony payments equal to the increase in cost of living. A less common addition is an escalator clause that increases alimony payments in accordance with an increase in the supporting spouse's earnings. Alimony can increase or decrease temporarily if either former spouse becomes ill, loses his or her job, or experiences other hardships. Payments revert back to the original amount after a specific period of time.

Alimony (Spousal Support) Termination
Alimony termination occurs either when a former spouse dies or when the court orders alimony to end (as stated in the divorce decree). In many states, alimony may also terminate when the recipient remarries, enters a domestic 109

partnership, or, in some cases, cohabitates with a new partner.

Alimony termination with remarriage and cohabitation
When the recipient spouse remarries, he or she enters a new marital partnership. Alimony terminates because the former spouse shouldn't be expected to support this new partnership. In rare cases, alimony may continue after remarriage if agreed to in the divorce settlement. If the recipient's new marriage ends, alimony from the first marriage can't be reinstated. If the supporting spouse remarries, though he or she still pays alimony. However, the amount may be reduced if the marriage produces a child. The recipient's cohabitation with a new partner isn't sufficient grounds for alimony termination- the relationship must also provide an economic advantage. If the recipient and his or her partner have a relationship similar to a marriage and share a home, bank account, and household expenses, the court may modify alimony. Generally, courts won't terminate alimony in cases of cohabitation because there is no financial obligation between the cohabitants if they break up.


Other factors that affect alimony termination
Alimony may terminate at the supporting spouse's retirement if he or she retires at 65 or is forced to retire early. The supporting spouse's retirement benefits may act as income replacement for the recipient if divided appropriately in the divorce settlement. If the supporting spouse declares bankruptcy, he or she is still responsible for alimony payments. Alimony is usually seen as a temporary arrangement with an end date agreed to in the divorce settlement. This alimony is referred to as rehabilitative alimony, and is designed to provide assistance until the recipient can be self-supporting. A spouse may be awarded permanent alimony if age, disability, or other factors prevent him or her from becoming economically independent.

If you seek alimony termination
You can petition the court for alimony termination at any time, but you must show a substantial change in circumstances for your application to be considered. In cases of cohabitation, you must show the new relationship is fully supporting the recipient. This may be difficult to prove if your former spouse disputes your claim.


If there are terms in your divorce settlement outlining conditions for alimony termination, the court may still want proof of a recipient's financial independence before making a decision.


Children and Divorce
A divorce is not only difficult for you and your spouse, but is also tough on your kids especially if they're still living at home. You'll have to reach a settlement with your spouse on issues like custody, visitation rights, and child support. Below you'll find some great guidance that can help you figure out how to approach these matters. You may also be interested in reading about child custody.


How to Tell Your Children You’re Divorcing
The best way to approach this painful conversation is to remember that it's all about your kids. Tell them what is happening and why. Let them know what changes to expect. Reassure them of your unconditional love. Answer their questions calmly. Show them that you and your spouse remain united in working together as their parents. Your quiet confidence will go a long way in easing their anxieties about the future. But, first of all, be absolutely sure your decision to divorce is final.  Talk with your spouse first A unified parental front will reassure your children. Get together and plan what to say well before you actually sit down with the kids. This kind of preparation will help keep the conversation on track. If you and your spouse are having difficulty cooperating, consult a mediator for guidance.  Tell your kids together As painful as it will be, this conversation can be an important ‘preview' of the future. Having both you and your spouse present and engaged in the conversation shows your children that you're still


going to be their parents. Remember that older children will have deeper questions, so plan on addressing them at another time.  Stay calm, don't blame This is not the time or place to play the blame game. Staying calm and confident eases some of your kids' anxiety about the future. Seeing that you and your spouse respect each other and talk with each other will reassure them that they can talk with you and rely on you.  Explain why this is happening Specifics are not necessary or appropriate, but oversimplified reasons may confuse them. Give good, general reasons. Your children want to understand, so make sure your message is simple, straightforward and age appropriate.  Help them understand what to expect Give your kids details about the changes ahead. They will be concerned about where they are going to live and with whom. You don't have to have all the answers. Be truthful about what you know-and what you don't know. Do not make promises you can't keep.


Give them details on the parent who is leaving Kids afraid of "losing" the parent who is leaving need reassurance that the relationship they depend on will continue. Tell them where their parent is moving, and when they will see each other.

Reassure them of things that won't change Most reassurance you give your children will take place in small, everyday ways. In this conversation, make sure they know that they are no way at fault. Be sensitive to their reactions, but be prepared to give them time to adjust. Remind them of your unconditional love for them. Remind them again and again with hugs, smiles, affection and attention to their lives.

Welcome questions Your children will have questions-now, and in the future. In fact, they will develop new concerns or revisit aspects of the divorce often as they grow. Answer as honestly as you can, even when you have to say, "I don't know." Let your patience, courage and love comfort and guide you all through this difficult life transition to a hopeful future.


Top 10 Ways to Help Your Children Get Through a Divorce
Written by: Erik E. Cary, Divorce / Separation Lawyer

Divorce is stressful not only for adults, but children too. The reactions you may receive from your child(ren) may differ greatly depending on the child and circumstances surrounding the breakup. Fortunately, parents can help their kids during a divorce.

Get Along with Your Ex
Do not insult or talk bad about your (soon-to-be-ex) spouse in front of, to, or around your children. This is harmful and detrimental to your children. In extreme cases, it is sometimes referred to as "Parental Alienation Syndrome (PAS)." You should encourage your spouse to be the best parent that he or she can be, even if your spouse was not a particularly good husband or wife. Children need both parents; driving a wedge between your child and the other parent will do grave damage to both or may backfire and cause the child to resent you and defend the other parent. Sometimes the other parent simply withdraws from the relationship altogether; 117

only in the rarest of circumstances is this good for your child. The majority of children charged with crimes in our juvenile justice system do not have the active involvement of both parents.

Avoid Involving the Children in the Dispute
Do not involve your children in legal discussions. The financial and legal details of the divorce will only serve to upset and distress your children. Children should not be permitted to (over) hear your arguments and discussions about legal, financial, or emotional issues relating to the divorce. Children should not be informed about what is going on in court and generally should not be asked to make a decision to choose one parent over the other. Your children should not be encouraged to shuttle messages back and forth between their parents; instead, you should communicate directly, politely, and calmly with the other parent about any parenting issues (even if your spouse is rude or unresponsive with you). Never bring your children to Court without prior Court approval.


Be a Parent to Your Child
Do not dump your emotional baggage on your children. If you are angry with your spouse, have resentment toward your spouse, or are saddened by his or her actions, you should not discuss these extreme emotions with your children. Your child is not your friend, buddy, and certainly not your counselor or therapist. You are the parent and your children expect you to be in control at all times. If you are out of control, you cannot parent the way you should. Your children need you to be engaged most of all during this emotionally difficult time. If you need to discuss your feelings, hire a counselor or speak with a close friend or adult relative.

Reassure Your Children
Reassure your children that both parents love them; tell them directly that the divorce is not their fault and that everything will be okay. In most cases, you should attempt to come up with a game plan (or "parenting plan") so that both parents can be actively involved in your children’s activities. Also, there are “parenting coordination classes” such as “Putting Kids First,” that can be taken to help you work with the other parent for the betterment of the children. Discuss 119

any potential plans or agreements with your respective attorneys, and seek their input, but do not sign anything without talking to your lawyer first.

Keep the Routine the Same
Try to maintain the status quo during the divorce as much as possible. The children have grown to expect such routines from you, and you will cause unnecessary stress if you decide to change all things that are familiar to them. If the divorce does not require moving them out of their house, changing schools, or moving to another city, it is not a good time to make these or other changes. If your children have friends they like to play with, family members that they want to see, or adults involved in their lives (that you approved of prior to the divorce), do not cut off those relationships simply because they may be "more friendly" with (or related to) your spouse. Your children should be encouraged to contact these people by telephone or email if they cannot visit in person. You must be the bigger person about these matters. Take the high road, rather than the low one that is so often traveled.


Never Introduce New "Significant Others" During a Divorce Never ever, ever introduce a new "significant other" into your children's lives during or even shortly after the divorce. This will confuse them, upset them, and will make them very angry and resentful. Take this time to concentrate on the children and building your relationship with them, rather than a new love interest.

No Drugs, Alcohol, or Tobacco
Children should not be exposed to secondary smoke from tobacco. Children should not be present during the use or possession of illegal drugs. Parents must ensure that children are not transported in a motor vehicle by any person under the influence of alcohol or drugs. Your children deserve to be safe and secure.


Get Agreements with Your Ex Regarding Raising the Child Parents should discuss, agree, and then mutually enforce appropriate limitations concerning the use of cell phones, computers, video games, television, and similar electronic devices or modes of communication. You should include what ratings are acceptable for television, movies, and video games, as well as appropriate curfews or bedtimes.

Don't Criticize the Other Parent
Do not criticize the other parent. Do not permit, encourage, or allow your children to criticize the other parent. The other parent's failures in life (financial, psychological, relational, physical or emotional limitations, or legal problems) should not be discussed with the children, unless it is first brought up by the child, and only then after a discussion is had with the other parent about the nature and extent of the disclosures to be made to the children.

Create a Space for Your Child
All children should have a place for their belongings in a room separate from their parents, at each parents' location. The children should be allowed to take a reasonable amount of belongings with them to the other parent’s home and they should always be permitted to return with those items that


were originally in his or her possession, unless a prior agreement is made with the other parent in advance. The child must be permitted to have photographs, correspondence, and personal items from both parents in their personal space.

Parenting Plans
Written by: Mary G. Commander, Divorce / Separation Lawyer

A parenting plan is a written document which sets forth the parenting schedule of each parent with the minor children. It also may include responsibilities and duties, as well as prohibitions during the time that the child is in each parent's care.

Parenting plans mandatory in some states
Some states have statutorily-created parenting plans that must be filed with the court as a part of any custody case and have preprinted schedules for use by the parties. These may include certain requirements that become a part of everyone's parenting plan.


Other states leave it to the parties or the individual judges to devise whatever visitation schedule they deem to be in best interests of the children in a particular case. The American Academy of Matrimonial Lawyers (AAML) has created a Model Parenting Plan which can be used as a resource for specific provisions.

Sample provisions in parenting plans
Anything that the parents want to include can be included. The plan can be as general or as specific as necessary. The more trouble the parents have communicating, the more detailed the plan needs to be in order to avoid future problems. In general, the parenting plan will include:

Times/days for parenting time (Including Summers, Holidays, Birthdays) Who will be doing the driving for pick up and drop off and where pick up and drop off will be Make up days/time for missed time due to illness Doctor/dentist appointments School decisions; school notifications Daycare, babysitting, right of first refusal Payment of expenses Prohibitions, such as no alcohol use 124

     

 

Any special circumstances Remedy in the event of disagreement, such as mediation before filing in court

The goal with parenting plans is to fashion a plan that meets the child's developmental, emotional and social needs and facilitates the child's adjustment to the new living arrangement.

How Do I Calculate Child Support?
Written by: Anita Cowley Savage, Divorce / Separation Lawyer

Every state has child support guidelines that set forth the presumptive amount due from one party to the other in a divorce or suit affecting the parent-child relationship. Below you will find an example calculation for Texas. While this calculation is applied in most cases, a request to deviate from the guidelines can be made in some circumstances.


Calculate the paying party's net income.
The first thing to determine is the paying party's gross income. Income includes money from:
       

Wages Overtime work Commissions Tips Bonuses Rental income Interest income And the like

From the gross income, the Court will determine the net income of the paying party by deducting social security taxes, federal income taxes based on the tax rate for a single person claiming one personal exemption and the standard deduction, state income tax, union dues, and expenses for the cost of health insurance for the child (if any).


If a paying party's net resources are $7,500 per month or less, the following child support will almost always apply:

For 1 child, the child support order will be 20% of the paying party's net resources. For 2 children, it is 25%. For 3 children it is 30%. For 4 children, it is 35%. For 5 children or more, it is at least 40%, if not more.

   

Determine if there are special factors which might suggest deviating from the guideline amounts.
There may be circumstances when it is in the best interests of the children to deviate from the child support guidelines. This may include:
   

Special or extraordinary educational Health care or other expenses of the parties or child The cost of travel if it is necessary to see the child The financial resources available for the support of the child The ability of the parents to contribute to the support of the child And other such factors


If those facts are present, a court may deviate from the child support guidelines and enter a support order that is lower than or higher than the amount recommended in the guidelines as described above.

Family Law - Relocation with Children
Written by: Maury Devereau Beaulier, Divorce / Separation Lawyer

Our society has become increasingly mobile over the past several decades. As a result, parents often seek to relocate away from the other parent after custody has been determined. Such relocations can wreak havoc on family relationships.

Importance of Fighting Relocation
Since the laws vary broadly, it is extremely important for a parent seeking to prevent relocation with children to know, understand and follow the detailed rules to prevent that relocation. If the custodial parent fails to follow the rules, it can often result in a change in custody. State laws often spell out requirements which may include:


Notification and Objection A parent seeking to relocate must generally notify the other parent well in advance of a move. The timelines for that notification are specified in many state laws. Those same laws also provide specific instructions regarding the information that must be 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 seeking to prevent the relocation Consent and Order Yet other states require not only notification, but consent of the other parent to allow the move. In the event the both parents do not consent, often the parent seeking to relocate most bring a motion seeking permission of the court. This often would include a request for a change in custody.

Factors Considered
Often state statutes spell out factors that a court must consider when determining whether to allow children to relocate away from one parent. Some factors courts consider when making determinations to allow or disallow a move include:



The relative strength, nature, quality, extent of involvement, and stability of the child's relationship with each parent, siblings, and other significant persons in the child's life.


Prior agreements in divorce decrees or orders of the parties. Such agreements are often given great deference.

3. Whether the relocation would substantially interfere with the other parent's relationship with the child and the extent of thar interference. 4. Whether the benefit of the relocation outweighs any harm caused by the relocation. 5. The reasons of each person for seeking or opposing the relocation and whether the request is made in good faith or is intended to interfere with the other parent's rights. 6. The age, developmental stage, and needs of the child. 7. The quality of life, resources, and opportunities available to the child and to the relocating party in the current and proposed geographic locations. 8. The availability of alternative arrangements to foster and continue the child's relationship with and access to the other parent. 9. The financial impact of the relocation as it relates to parenting time including the cost of travel. 130

Impact and Conclusion
One truism is that if the Court allows the relocation, it often requires the party moving to pay more of the transportation costs related to visitation. This cost issue should be raised in any hearing as well as a request to change custody if the parent responsible for the transportation contemptuously fails to follow the court's orders. In the even the noncustodial parent does not prevail, a finding in that regard may change those fortunes if the moving parent fails to follow through on their obligations.


After Divorce
You've survived the hardship of divorce; now it's time to move forward with your life. If you find that your ex-spouse is not adhering to the divorce decree, you may have to deal with related issues for quite a while after. Find guidance below that covers the essentials on many of these issues and can help you learn what to do in common scenarios such as enforcing your divorce decree, appealing your divorce, or resolving parenting disagreements.


Enforcing Your Divorce Decree
Once the court has delivered a judgment and the final divorce decree has been signed, both parties are bound to follow all conditions set out in that decree. If either party later decides that any provision in the decree is unacceptable, that person must petition the court for modification. Simply ignoring the disagreeable conditions is not an option, as it puts the violator in contempt of court. Violations are often a result of feelings of anger or betrayal on the part of the violator, and may be an attempt to control or punish the ex-spouse. Common violations include:
 

Non-payment of child support Non-compliance with visitation schedule: this can involve the custodial parent refusing visitation to the non-custodial parent, or the failure of the noncustodial parent to return a child home on schedule Non-payment of alimony

If your ex-spouse has violated any portion of your final divorce decree, you may file a contempt of court motion, either through your attorney or on your own. If you file yourself, it is your responsibility to ensure that your exspouse has been served with the motion and receives notice 133

of the date and time of the hearing. Even if you choose to handle the contempt action yourself, you should at least consult with a lawyer to be sure you do it right. In addition, you can find sample motions and the exact filing procedures in your local court's family law guidelines regarding divorce.

Filing the Contempt Motion
In your contempt of court motion, you must indicate exactly what part of the divorce decree your ex violated and how. Provide a complete account of the violation. It is up to you to prove the violation, so make sure you have a strong case. Get any supporting paperwork in order before going to court, and subpoena any witnesses that can support your claims. The court office can help you with subpoenas. Try to keep your children out of the court proceedings. Not only is it stressful for them to have to speak against one parent in public, but courts do not like to ask them to do so.

The Court's Decision
After hearing all the evidence and arguments from both sides, the judge will determine if your claim is sufficient to


hold your ex in contempt of court. If the judgment is in your favor, the judge will issue a written order detailing the contempt order and how it can be resolved. Usually your ex will then have an opportunity to fix the issue, either immediately or within a specified time period. If your ex does not comply, the judge may order jail time until the matter is resolved. Even if your ex does not comply within the specified time, it may not result in jail time. For example, if a failure to pay child support or alimony is due to job loss, the judge may feel jail time is not warranted, especially if your ex is actively looking for another job. After all, it is difficult to find work from jail. The goal of a contempt of court motion is not to punish or humiliate your ex-spouse, no matter how much you may want that. The goal is to ensure your ex makes right previous violations of your divorce decree and also understands that you will not tolerate any further violations.


Appealing Your Divorce Decree
Ideally, both parties in a divorce are satisfied with the terms of their final divorce decree. Unfortunately, this is not always the case, especially in a contentious divorce. When one party believes that the judge's rulings were grossly unfair or fraudulent, that person can file an appeal.

Legal error or misconduct
State laws regarding appeals differ, but most allow appeals only where you can show misconduct or that the judge erred on a point of law. You cannot appeal an issue that was not raised in the original trial. An appeal can be lengthy and expensive, so you are much better off making sure you understand and agree with a divorce decree before you sign it. If you find errors, especially dollar amounts, or wording that could later be misinterpreted, insist that they be fixed before signing. If, however, you do decide to appeal, use a divorce lawyer rather than doing it yourself. The procedure is long and complicated, with many documents to file and multiple recipients receiving multiple copies. A divorce attorney familiar with appeals can make sure it’s done correctly.


Appeal process
Most states give you a limited time after your divorce decree is finalized to file a notice of appeal, generally about 30 to 45 days. The notice of appeal tells the court that you intend to appeal the ruling. It describes the issues you want to appeal and why you believe the original ruling was wrong. You will usually also have to file the trial transcripts from your original divorce proceedings, along with any evidence entered into that trial. You may not enter any new evidence and no new testimony is involved. Once all documentation is in place, the appellate court, usually consisting of three judges, reviews it all. If the appellate court sides with you, it will order a reversal, which overturns the trial ruling. It will also usually issue a remand, ordering the trial court to revise the decree based on the appellate courts orders. There is no guarantee that the appellate court will find in your favor, and in fact, it is unlikely. If it does not, it will affirm the original divorce decree and you will then have to abide by it. Your best chance at a satisfactory divorce decree is to make the most of your divorce trial. Make sure your attorney 137

aggressively represents your best interests and presents all pertinent evidence. Remember, unless the judge in that trial makes a serious error in judgment or acts fraudulently, the appellate court will most likely deny your appeal.

Parenting Consultants Post-Divorce
Written by: Maury Devereau Beaulier, , Divorce / Separation Lawyer

All too often, disputes regarding custody and parenting time do not end with the final divorce degree or paternity order. When parenting disputes arise regarding legal custody decisions, parenting time issues or even modifications, there are options available to parties outside of the court room. In addition to mediation, a court may order the appointment of a parenting specialist such as a parenting consultant.

Parenting consultants
A parenting consultant is a neutral party whose role it is to assist parents in divorce, paternity or legal separation matters with their parenting issues. The parenting consultant often fills the role of a child development specialist who may be called on when disputes occur between parents to mediate the disputed issue and to provide insight into parenting decisions and their impact on children. 138

Expert opinion or advice provided
A parenting consultant may be agreed upon by both parents, either as part of a legal case or after it has been concluded. It is important to note that a parenting consultant cannot make decisions for the parents or to resolve any disputes unless otherwise empowered to do so by a court order. Instead, a parenting consultant provides expert opinion or advice and encourages the parents to resolve their own disputes through dialogue and discussion. When parents are unable or unwilling to agree, the parenting consultant may make recommendations regarding solutions that would benefit the children. As a result, a parenting consultant may testify in any subsequent court proceedings regarding the nature of the parental discussions and provide to the court their opinion on any disputed parenting issue. There is no confidentiality between the parenting consultant and the parties under law.


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