Don’t Take Your Ex’s Word for Everything

D-College-CostsI received a call this week from “Tony,” a fictitious name for a man I represented in 1998, when he and his first wife had a 3 year old son together.  He has been a generous and involved father to his child from that marriage for the entire 15 years since his divorce. He paid child support on time and in full even when he was diagnosed with Leukemia and had to take a medical leave of absence from his job for two years. He never missed a payment. In fact, he was never even late with a payment.  He has since remarried and has an 11 year old son with his current wife.

We’ll call the first son John and the second son Jacob.  John came on every vacation with Jacob and their dad and his wife.  John has played as many sports as Jacob, he has gone to as many ball games and concerts and family picnics with their dad as Jacob has.  The dad never lost his connection to John, never let the new family exclude John. John and Jacob know that they are half-brothers, but they feel that they are brothers.

In all his years of paying more than the court ordered by staying current with child support, and adding whatever extra-curricular activities he could, of making sure that John and Jacob both had health insurance, glasses, braces, cleats, and haircuts, Tony and his second wife always knew that once John turned 18, the child support payments would end.  The love, and care, of course, will never end.  But they were able to budget their lives knowing that in July of 2013, they would essentially get a pay increase.

Imagine Tony’s surprise, then, when he received a phone call in August from his ex-wife (let’s say “Tina”) telling him that he needed to start paying for John’s college tuition room and board.  Tony and Tina both have copies of the same divorce agreement they signed in 1998.  They both read the same words.  Tina saw it and read, “Tony has to pay one –half of full tuition, room and board at a state University.”  She figured that meant that if those costs are now about $12,000 per year, that it was time for Tony to start paying her $6,000 per year.  If John goes away to college, or stays home with her should not influence (in her interpretation) how much money Tony owes her.  She figured she could take $6000 from Tony, and have John take out student loans for anything else he needed.  She just saw that paragraph as another pay day for her.

Luckily, Tony called me.  I have to admit that I could not at first recall the specific language of the agreement.  When we discussed it by phone and he said that he was obligated to pay half of John’s college, I thought that might be true.  But I asked him to bring me a copy of the agreement anyway, so I could read it myself.  It seemed like a bigger commitment than Tony would have made.

I told him that because of his illness, if necessary we could move the court for a modification, but that is a last resort.  Remember, if Tony had to pay me to represent him in court, and Tina got an attorney, too, all of that money would be directed away from John’s education and into lawyer fees and court costs.  The worst possible scenario, if you ask me.

Sure enough, he brought me the signed agreement and court orders and as soon as I had a chance to read them, I could see the confusion.  The agreement is that both parties will help John get as much financial aid as he can get, and then the two parents will pay equal shares of what is left; but not more than the cost of a state college. If Tina pays $5000, Tony has an obligation to match it.  But if John only needs $5000 from his parents; then Tony is only responsible for half of that amount.   The best part, to me, and to Tony, is that none of this money will go to Tina.  John will continue to have his dad helping him get through life and do what he needs to do; but all of Tony’s money will be going directly to John’s benefit, not by way of Tina – and not to lawyers’ fees.

What We Love:  It is always worth having an attorney read a legal document for you.  It might cost you an hour of the lawyer’s time, but it could save you thousands of dollars in mistakes.


Whose divorce is this, anyway?

D-familylawI had a surprising phone call today with an old friend.  He has been in the divorce process for almost a year, and could not see a way to conclude the process and get on with his life.  The reason, sadly, is because his wife won’t let him.  After all of these years of letting her call the shots, he is still thinking that what he needs to do is follow her orders and she will cooperate with him.

He is mistaken.

When the wife told him that she wanted a divorce, he hired a mediator and filed the papers.  They went through the financial discovery process and decided what the state guidelines would most likely order him to pay on support.  The wife told him that the number was too low, so he increased it by $500 per month.  Then she told him to move out, and he did.

So, the situation became a perfect one for the wife:  her bills are paid, she does not have to live with her husband, but neither is he free to move on.  Every time the two of them have been scheduled to appear in front of a judge to report on their progress, the wife has declined to attend.  When the husband has tried to encourage the wife to go to court, to meet with mediators, or to sign an agreement, she has declined.  When he insists, she threatens to hire a lawyer.

Now, we all know why he would rather not push her. Hiring an attorney is an expensive and daunting  proposition. The only thing worse than hiring your own lawyer is paying for the opposing party’s lawyer.  So, out of fear, he backs off.  And stays married.  And pays more than a judge would likely order.  Because he is waiting for his wife to act reasonably.  For the first time in 20 years.  I told him I thought that it was an unlikely scenario.

The truth of the matter is that sometimes the good guy just has to be the bad guy.  It is not fair to my friend, or his children, or even his wife, for their divorce to drag out this long.  They are living in a state of perpetual limbo and no one is truly happy.  I walked him through a little of the procedure for what he needs to do to get in front of a judge, without lawyers, and ask for a divorce.  My friend is looking for a reasonable breakdown of assets and liabilities, and – frankly – so is the judge.  The court is not trying to punish anyone.  In a no fault state, the job of the judges is to help everyone who needs a divorce get the most fair and equitable divorce possible, in a reasonable time frame.

I hope my friend uses the advice I gave him as an opportunity to take the power away from his wife and let the divorce finish.  He will be happier, and so will his family.  He will have to wait a very long time if he wants to wait for her approval.  I just don’t think it is coming.

What We Love –  The laws are in place to protect society’s interest in everyone getting a fair and equitable outcome in their divorce, as much as possible.  You do not have to wait for your angry spouse to come to her senses.  There is a court system in place to do that for her.

Getta’ loada’ THIS guy!

D-moneyI rarely do this, but – you think your ex (or soon-to-be-ex) is a jerk?  Getta’ loada’ THIS guy!

Mr. and Mrs.  “Michaels” were married while Mr. Michaels was finishing his education at a prominent New York law school.  Mrs. Michaels worked two jobs so they could afford a decent place to live while her husband started his own litigation firm and built a clientele.  After about 10 years of marriage, a decent nest egg accumulated, and a respectable law practice in full-swing, they moved to the suburbs and had a baby.  Mr. Michaels kept working, but moved his practice to the town where they lived.  Mrs. Michaels made child-rearing and house maintenance her new career.

Shortly after their son graduated high school, his father announced that he wanted a divorce.  He told his wife that if she cooperated with him, he would “always take care of her,” so she cooperated.  They sold the marital residence, and split the profit without her ever seeking any legal advice on her own.  She moved into a small apartment and put the rest of her share into a savings account, waiting for her husband to give her half of their retirement accounts and savings.

She took a job working in retail to make ends meet, because he never gave her any money at all and she needed to pay her rent.  When she would ask him about alimony for rent payments he would tell her that since they were still married he could not pay her alimony.  She should just pay her own bills to the best of her ability and he would pay her back once he settled their accounts.

18 months after they separated, Mr. Michaels called his wife and told her that they were “automatically divorced” by the laws of the state because they had been living apart for 18 months.  He further told her that there was no money left in their accounts, he had spent it all on his own needs, and furthermore she was making more than he was on their tax returns, so he would be looking for alimony from her.

I am not making this up. A bright articulate woman in her 50s walked into my office and asked me whether she was automatically divorced, what had happened to all of their money, and whether she would be responsible to pay her ex-husband-the-lawyer alimony from her minimum wage job. The answers are:  there is no such thing as an automatic divorce, I did not know where the money went but I was about to do my best to find out, and the circumstances would have to be pretty extreme for her to have to pay him alimony.

Here is what we found out.  He declares income of about $500 per week, and rent of $750 per week.  His restaurant charges alone are more than $500 per week.  He just doesn’t report any of it as income.  He has no credit cards or other debts, purchased a new motorcycle for himself over the summer, and goes on monthly vacations out of state.

Last time we went to court he told the judge that he could not defend himself against my motion for alimony because he is “indigent” and could not afford an attorney.  The judge looked as if she was about to give him some time to hire a lawyer when I interrupted. “Excuse me you honor, but the Plaintiff himself is an attorney,” I told her.  The courtroom full of people gasped and chuckled at his audacity, and we were given our hearing.

The fact that this woman wants to trust her husband is one thing.  He is a lawyer and she has spent almost 30 years trusting him.  But as soon as she began to understand that he is lying to her, and apparently trying to defraud the court and the IRS into the bargain, she was smart to get her own legal counsel.    There is an old saying, “Trust, but verify.”  It is okay to believe what people tell you, but there is no harm in making sure it is true, and a good lawyer is just the person to verify when things look sketchy.

WHAT WE LOVE:  Divorces have an objective discernible truth, and given the opportunity to look for it most judges will find it.

Finding A Theme In Life

D-NewYearResolutionI don’t know about your house, but in my family, the resolutions have already begun meeting reality.  Diets are hard to maintain in cold weather.  No one is going out for a run in the snow.  With only one day of school under our belts, the backpacks were already in the middle of the living room and “reminders” needed to be repeated.

A wise suggestion I heard in late December was to consider a theme for the year.   Instead of a list of specific, ignorable tasks, give yourself a theme for the changes you want to make in the coming year.  Some of the suggestions were “charity,” “patience,” and “mindfulness.”  It is easier to keep on track with a broad theme, even if there are small missteps and mistakes along the way.

We used the same idea in law school when we were learning about trial preparation techniques, and I frequently encourage my clients to try it in their divorces.   Sometimes the nitty-gritty of sorting out how to divide an entire life gets overwhelming.  Priorities can fall by the wayside as people try to sort out who brought how much money to the marriage, and how that money was spent.   The credit cards are high, and it feels as if the other person ran them up; but does it count if we both use the gaming system with the kids?  Do “loans” taken out from parents and in-laws count as gifts, or are they loans that are expected to be paid back now that we are getting divorced?

Even after the parties have reached general consensus, questions may arise about relocation (how far is too far? How much notice is required?), extra-curricular activities (who decides which lessons, camps, and programs? Who pays for them?), and title to the property (do we buy each other out now? Wait until the market rebounds?).  The details can overwhelm even the most amicable and level headed people.  But, by keeping to a theme answers may become more readily apparent.

Your theme might be something like “Any price for freedom,” in which case the questions about who keeps the record collection, the dog, and the dining room set won’t need a second thought.  Or you might be most concerned about keeping a college savings account for the kids, no matter what.

A theme like “keep the costs low and the savings high,” makes it easier to walk away from a battle about what time visitation should end on weekends.  Fighting costs money. Also, we had a dispute once in which the Husband didn’t want to give the Wife a percentage of his annual bonus, saying she did not need the extra money.  The wife agreed that she did not need it; but that there was no safety net for the kids.  They agreed that a percentage of the husband’s annual bonus would go into the kids’ college savings account.  Neither parent increased their own income, but both were satisfied with the outcome.

One client had been separated for over a year from her husband, but they had not been able to work out the details of the divorce, until the wife realized she was expecting her boyfriend’s child.  The theme of that divorce became “I’m planning my next wedding.”   One of the stumbling blocks, the question of alimony, disappeared pretty quickly with the new theme.

What We Love:   Finding your own theme can help you keep perspective when the details of a divorce threaten to derail your sanity.

Holidays and Starting the New Year

As we wrap up the holidays, are you wandering from room to room wondering how you have survived so long with your spouse? Do you catch yourself forcing a smile for so long that your jaw starts to clench? Sometimes we spend the holidays with family and friends, thinking we are shielding them from our own unhappy relationships, while with each passing day we grow more and more tired of the charade.

We think that we are protecting our spouse, our children, our parents from the unhappy truth that the relationship is no longer working. We tell ourselves that it is wrong to break up over the holidays and it can wait until next year. We do our best to swallow the feelings of annoyance, anger, and resentment, for the big picture of family togetherness.

But have you ever stopped to think that maybe the only other person in the room who feels the same way is your own spouse? Maybe every time you smile through gritted teeth at a story you have heard a million times before, the person sitting next to you is biting back the words, “stop gritting your teeth!” Maybe our desire to hide the truth is also a desire to hide *from* the truth.

The first time I ever had to fire anyone was my best friend at the time. I had just graduated from law school, and was working in my parents’ firm. The office clerk was a dear friend of mine from high school (we’ll call him Chris) who had started working there while I was away.  Chris & I were both single at the time, both recently relocated back to our home town, and each other’s closest confidant and constant companion.

Chris is a smart guy. He is neat in his work habits and physical appearance. He gets along well with almost everyone. In total, a really great guy.

But, for some reason, he made dumb mistakes at work. The clerk job was pretty mindless, well below his intellectual capabilities. Yet, he would make silly mistakes, like putting papers in the copier upside down, so we got blanks instead of the intended information; putting documents into the wrong client’s file; forgetting to write down telephone messages, etc.

My parents gave me the task of letting him go, thinking it would be easier coming from a peer than from one of them. I dreaded the conversation. I didn’t want to hurt his feelings. And selfishly, I didn’t want to jeopardize the friendship.

Each time I resolved to talk to Chris about looking for different work, something would interfere. I couldn’t fire him on his birthday. I didn’t want to ruin his planned vacation. I couldn’t tell him on his first day back from vacation. Etc., Etc.

Until, eventually, the day came when the excuses were gone. His work had continued to deteriorate, and I needed to face the music. I might lose him as a friend, but I needed to fire him as an office clerk. If he needed help finding a new job, I would do what I could to help him, but that was the best I could do for him.

We sat on either side of my desk, and I said the job was not working out. He clearly did not have his heart and mind in the game and it was effecting his performance. I said how much I  valued him as a friend, but that it could not overrule what I needed to do for the law firm. It was honestly heart breaking for me. I felt like I was dumping a great boyfriend because someone else said I should.

When I finished speaking, Chris got up from his side of the desk, walked over, and gave me a big hug. He said, “I know this must be difficult for you.” Then he told me that he knew it was the wrong job for him. He confessed that he found it difficult to focus on the mundane tasks and that he really wanted to go back to school and get a master’s degree, but he felt it would be a mistake to leave a paying job. Now that the job was over,  the sudden sense of freedom made him feel exhilarated, like he was finally free to pursue what he wanted to do with his life.

The truth is, he probably would have been happier, and better off, if I had not waited all those months to let him go. The whole time that I thought I was protecting him, I was actually keeping him in the wrong situation.

As I think about the New Year and the people who are grappling with difficult decisions, I am reminded of my dear friend Chris, and how his life turned in the right direction just as I thought I was doing the worst thing I would ever do to a friend.  You never know what someone else is thinking.

As a post script, I should tell you that Chris wound up getting 3 more degrees and is happily working in publishing as an acquisitions editor, traveling the world.

WHAT WE LOVE: Sometimes the truth hurts, but sometimes it opens the door to infinite possibilities.

-Sharon DeFala

Home for the Holidays

Even though this post was originally made 2 years ago, for the holidays in 2011, what we love still rings true today.

My friend, whom I will call Bill, is divorced with two teenaged sons. The boys live in the marital home with their mom.  Bill still lives in the same town and sees the boys as often as his work & visitation schedules will allow. He misses them a lot.  Unlike some of the families I am fortunate to know, Bill and his ex-wife are not friends.  They can barely stand each other, and after a pretty bitterly contested divorce, blame each other for a lot of what is wrong in each of their lives.

I saw Bill just before Thanksgiving and was thinking that he probably has some schedule where the kids spend half of Thanksgiving with Mom & the other half with Dad, or someone has Thanksgiving on Thursday and then the other family has it on Friday.  And, in my experience, as bifurcated as Thanksgiving may be, Christmas would only be more so.

Imagine my happy surprise when Bill told me he would be eating Thanksgiving dinner with his children his ex-wife and his ex-mother-in-law all at the ex-mother-in-law’s house!  The secret to how he received this invitation floored me.  After what he has been through, and the money he has spent on lawyers, court hearings, alimony, child support, and maintenance on a house where he does not live; Bill said the last thing I ever expected to hear.

He was paying for a full catered holiday meal to be sent over to the mother-in-law’s house, at his own offer, for the family.  He didn’t even do it in anticipation of an invitation (how could he have anticipated a gracious response?).  He just knew that it would make the women’s lives easier if they didn’t have to cook, so he offered to have it catered for them.

No Judge ordered Bill to feed his angry ex-wife a feast. No court order makes the ex-wife graciously insist that Bill join them.  The truth is that Bill and his ex, as little else as they may have in common, both really want their sons to have a happy childhood.  So, they put their egos to one side for the annual family holidays and come up with creative solutions for reducing conflict and stress.

What We Love:  It is never too late to have a civilized divorce. Any one can still make decisions that reduce conflict and increase happiness.

– Sharon Oberst DeFala

Hunker Down – Here Come the Holidays!

D-ThanksgivingAs we all know, the end of the year brings with it all of the joys and excitement of the holiday season.  Unless you are going through a divorce.  Then it brings all of the “joys” and “excitement” of the holiday season.

Here is an excerpt from an email I just sent a client of mine who is embroiled in a nasty bit of drama with his (soon to be ex-) wife right now.

Let me just give a background note.  She is literally certifiable.  Her therapist told me so.   They have a high level of drama in their home on a frequent basis, with three young kids in the house seeing a lot of it.

Okay, now here is what I told him to get through the long holiday weekend…

The kids do not benefit from having two sources of drama and tension in their lives. One is more than enough.  There is nothing anyone else should be able to do that creates craziness within you.  You be the calm stable force that they need.

If you will not be with your children at any point over the holiday weekend, I recommend that you have a written accounting, in the mom’s own writing and signed by the mom, detailing where the children will be every day and night.

Where will they be on Thursday?  From what time until what time?  When should you expect them to be home?

Since the children will be with the mom’s family on Thursday, it is fair that they be with your family on Friday, and you need to be willing to give an exact timeline.  If she refuses, she needs to write down that she refuses to let the children see your family on Friday, and why.

Same thing for Saturday and Sunday – where will your children be?  What are the hours? When should you expect them to be home?

As much of this as she will write down for you, the better.  Give her plenty of space within which to write down her intentions and plans.

Please remember, whatever happens, you are both in this situation for the long haul.  Try to avoid pressing any buttons or escalating any drama.  And, as it is Thanksgiving, remember to take a moment to yourself for counting your blessings.

What We Love:  “Wise men count their blessings, fools count their problems.” – Michael Franti

– Sharon Oberst DeFala