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.

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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.

What are the Differences Between Divorce, Legal Separation, and Just Being Separated?

Screen Shot 2013-10-03 at 7.53.42 AMA legal term for divorce is “Dissolution of Marriage,” meaning that once the marriage is dissolved, it ceases to exist.  Once a couple divorces, they are each single and unmarried. They are then free to come and go as they wish, marry someone else, or not, and have control of their own adult lives.

Once a marriage is dissolved, the parties no longer have an inferred right to each other’s property.  If a couple purchases a house together as husband and wife, they do so with “rights of survivorship” unless they specify otherwise.  This means that if the husband dies while they still own the house, then the whole house belongs to the wife.  However, a divorced couple, even if the parties purchased the house together and continue to cohabitate in it; are presumed to own as tenants-in-common unless they specify otherwise.  So, if the ex-husband dies while they still own the house, his half goes to his heirs, and the ex-wife is only entitled to her share of the house, usually one half.  This might mean that the ex-husband’s heirs can request a court to force her out of the house.

Until a couple is legally divorced by a court order, they are still deemed as married within the eyes of the law.  Rights which attach at marriage, such as the above presumption of survivorship, automatic rights to an inheritance, vesting rights to social security payments, and others of that sort continue to apply.  Separated people who marry someone else are committing the crime of bigamy.  It does not matter if a couple is separated within their own house or across continents until the marriage is dissolved they are married in the eyes of the law.

The idea of a “Legal Separation” serves as a hybrid between the two.  In the states that allow for legal separation, it is a way of creating some ground rules between the couple as to how they will live separately from each other.  The couple typically goes through a similar proceeding in the court system of filing papers and putting the court on notice of their intent to legally separate.  In states where a couple must show grounds for divorce they may also be asked to show grounds for the separation.  If there is a statutory waiting period for divorce, it is usually the same (or close) for legal separation.  At the end of the waiting period the couple goes to court and a judge enters orders which will serve as the rules for the legal separation.  Such orders could include spousal support (akin to alimony), custody, child support and visitation schedules, and a distribution of assets and debts.

The Legal Separation thereby provides some of the benefit of divorce, such as the structure of a ruling on how things will go, as opposed to the nebulous quality of two people just separating and seeing where things will end up.  At the same time, it preserves some of the implied benefits of marriage, such as estate and property matters.

A Legal Separation may end one of three ways:  the death of either party, converting the separation into a divorce, or reconciliation.  Converting a legal separation into a divorce tends to be less complicated than starting a divorce from the beginning, since you already have record with the court.  Reconciling after Legal Separation is usually as simple as filing a form with the court, and the marriage resumes as if uninterrupted.  If either of the parties passes away during a Legal Separation (or a physical separation) the surviving partner is presumed to have all of the same rights as any other spouse would have in that situation.

What We Love:  Many states’ marital laws are designed to help individuals find the solutions that work best for them.  Sometimes a separation is all people need.

– Sharon Oberst DeFala

Cohabitation After Divorce

twinbedsIn an ironic twist on the old wives tale that living together before marriage would lead to divorce, there seems to be a growing trend of post-dissolution cohabitation, or – divorce leading to more couples living together after marriage.  Until the economy is on more solid footing, sometimes it just makes fiscal sense to combine incomes and keep one larger home instead of two smaller ones.

Let’s face it – most divorcing couples begin by complaining that they are living together “as roommates,” anyway.  We frequently hear that the romance has gone out of the marriage and one of them has been sleeping on a couch or in a spare bedroom for months, sometimes years.  Instead of being life partners, divorce becomes appealing when spouses feel more like business partners.  Was the mortgage paid on time? Whose turn is it to pay for cleats? Did you buy yourself something frivolous with the end-of-year bonus?

When the person you live with is nothing more than the other half of your bookkeeping team, it can be difficult to feel generous, romantic, or fulfilled.  If that person was never meant as more than your rent-partner, there should be no hard feelings.   But, when that person vowed to love and honor you “ ’til death parts us,” an extra fifty dollars missing from the checkbook takes on a whole new meaning.

And so the new arc of relationships might look something like: friends-lovers-roommates-spouses-lovers-roommates-friends.  With the time a couple spends as spouses representing the top of the curve.   We know the conversation that often progresses paramours from lovers to roommates, “We sleep at my place most nights anyway, why should we keep paying rent for two apartments?”  Maybe the converse conversation, on the other side of the marital peak is, “we never sleep together anyway, and you might as well just stay here instead of us paying two mortgages.”

One of the reasons those old wives gave for how living together could lead to more divorces was the theory that without a proper commitment at the beginning, the living arrangement would always be too casual. The door to the birdcage would always feel open, and therefore once that door closed, the commitment would suddenly feel false.  If post divorce behavior can serve as the mirror image to pre-marital behavior in this example, then maybe once the proverbial door is left permanently ajar, there is more reason to be careful and respectful inside the cage.

One of the double-edged swords of marriage is that it is where we can relax, let our hair down, and be most ourselves.  Unfortunately, sometimes the person we love the most gets the brunt of our unregulated selves.  Too often, the very behaviors we would never tolerate from, or foist upon, a mere roommate feels safe and comfortable with the people we should most cherish.  If that has happened, and the marriage is truly over, then maybe a step backwards – into the less comfortable and more polite behavior – is worth a try.  At least until your finances are a little more secure.

Only you know whether you can draw a clean line, though.   If a post-divorce cohabitation is still too hot (either with hatred, sex, or a combination of the two); maybe go crash on a friend’s couch until you can afford that second mortgage.

What We Love:  As long as you are willing to work together, divorce does not have to lead to bankruptcy. There are more options today than ever before.

Are you Ready or Hesitant?

divorcecompromiseMarriage affords people certain benefits.  There are compromises and pay-offs that married people balance and weigh all of the time.  It might actually be impossible to spend decades living with another fully-functioning adult and never get on each others nerves.  We are talking about marriage between human beings, after all.

Divorce happens when those compromises no longer make sense.  When the cost/benefit analysis suddenly looks like all costs and no benefits to one or both of the parties.  If it is both parties, the divorce can go pretty smoothly.  If only one partner’s scale has tipped to one side, it can be a much more difficult time.

When one spouse has spent years feeling over-used and under-appreciated, the other partner probably has no idea – whether or not they have been told.  It is a very rare person who would intentionally take his or her spouse for granted with no thought of repercussion.  So, we frequently see one partner who is anxious to get out, and one who is completely blind-sided and dumb-founded.  Let’s call them “Ready,” and “Hesitant.”

Ready will frequently try to make any compromise imaginable, just to make the divorce happen sooner. Whereas Hesitant might feel self-deluded into thinking that with enough time and effort Ready’s mind will change and things can go back to “normal.”  Hesitant might ask to try couple’s counseling, vacations together, or a temporary separation.  And, while any of these suggestions just feel like a waste of time to Ready, Ready might agree in the hopes that it will lead to an eventual divorce.

An angry Hesitant might use the opposite approach. In an effort to stay locked into each others lives, Hesitant might want to find every reason in the world to fight.  People can fight over kids, custody, money, pets, assets, debts, and even whose fault it is that we are getting a divorce in the first place.

Hesitant tends to rack-up attorneys’ fees in an effort to prolong the process.  Ready tends to give away his or her rights in the hopes of getting it over and done quickly.  Neither approach results in the best possible outcome, because they are both making decisions with their emotions when logic would be a better guide.

So, how can Hesitant and Ready put their feelings aside and make the best decisions for themselves and their families?  There are many possible solutions.  Using a trusted advisor, such as a neutral mediator, a second-opinion attorney (also sometimes called “Review Counsel” because it is an attorney who reviews another lawyer’s work), a financial advisor or a therapist can help bring an objective opinion to the process.  Ambitious parties can do some of their own legal research on line and try to get a sense of what Judges in their jurisdiction typically order in cases like theirs.  Or, waiting a few months after the mandatory waiting period, just to make sure that everyone’s jets have cooled can sometimes have the surprise effect of turning Hesitant into Ready.

What We Love:  There is no state that mandates a time in which you must divorce.  Once you know where you are headed you can take as much time as necessary to make sure that everyone is making the most rational decisions they can make.

No Major Decisions by Text

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The digital age of divorce has its benefits.  My clients and I can keep in touch with each other 24/7 via text and email. We used to reserve most of our communications for business hours, and only those hours when I was not in court or meeting with someone else.

They all had my home phone number, in case of emergencies, but really only for emergencies.   Now, I get notifications on my smart phone all of the time.  Quick questions like, “Am I allowed to sign a lease on a new car?”  More urgent concerns like, “he says he can kick us out of the house tonight, because my name is not on the deed.”  And even short status updates: “just left the doctor’s office, everything is fine.”

Attorneys generally bill in 6 minute increments, one tenth of an hour at a time.  The time it takes me to read and reply to most of these texts is less than 6 minutes; so I don’t have to bill the client for my time.  A win-win for everyone – with the caveat that the client is not receiving my fully thought-out undivided attention.  Sometimes we need to schedule a meeting, or at least a phone call, for the more complicated questions.

A recent such text exchange went something like this:

Client: “We have been getting along well all weekend.”

Me:  “Great. Keep it that way.”

10 minutes later. . .

Client: “What is the difference between divorce & separation?”

Me: “We can talk about it on Monday.”

Client: “Maybe we should withdraw the divorce action.”

Me:  “No decisions by text.”

Granted, this is an extreme example, but the truth of the matter is that amicable divorces present their own unique challenges.  There are ways in which it is more difficult to divorce someone you like than someone you hate.  Clients frequently vacillate about whether they can stick it out, after all.

But, no one ever gets divorced by accident.  A good weekend together is not the same thing as a good marriage.  And, most importantly the pro/con analysis that is required in making these decisions takes the physical and mental presence of at least two rational adults.  Divorce is not something to be entered, or abandoned, lightly.

So, keep texting with your attorney, “his alimony check cleared,” “her mother dropped off the kids to me,”  “can we meet next Tuesday morning?”  But, always remember to use it for its intended purpose; quick exchange of information, not life-altering decisions.

What We Love:  The more information your attorney has, the better she is able to run your case for you.  Texting can help keep you both on the same page without expensive extra office visits.

GRATITUDE IN A POST-SANDY WORLD

The eastern seaboard of the United States has just come through a major storm and its after-effects. Hundreds of thousands of people are still without electricity and more are dealing with the results and damages.  More than a hundred people are reported dead.  Those of us who “only” lost heat, or electricity, or cell service or some work days/school days, are feeling pretty grateful and fortunate right about now.  And, considering that it is November, it is just about that time to start being deeply thankful for our blessings.

Yes, even if you are going through the turmoil and disorientation of a divorce.  This year, as always, I am collecting some of my favorite stories of the post-divorce possibilities. These are the stories that make me feel a sense of gratitude and hope. These are typically people who kept their wits about them during the divorce process enough to be civil adults with each other afterwards.  (The names are fictitious, the stories are true.)

“Rickey” owns a restaurant in town. A few days after Hurricane Sandy I saw him at work looking unshaven and a more bedraggled than usual.  I asked if he had electricity and water at his house.  He said he did not; he lives in one of the towns near here that spent a few days with 100% of its citizens in power outages.  But, some of the guys at his place had been able to find him a generator that very morning.

“I bet you are excited to get home and get it juiced up,” I said. 

He chuckled, “not quite,” he said.  “I had them bring it over to my ex-wife’s house, so she and the kids can use it.  I’ll wait until they go out tomorrow, and see if I can go take a hot shower while they are out.”

“Annie” hosts her family for Thanksgiving every year. She and her two sisters rotate who hosts each of the major family holidays, and she is always happy to have a large crowd for Thanksgiving.  Being the youngest of the three sisters, her children are also the youngest of the 8 cousins and they get very excited to have all of their cousins and aunts and uncles and grandparents at their house for the day.

This year, the divorced middle sister is bringing her new fiancé, which surprised me, since I know that the kids all love her ex-husband, Uncle Mike.

“Oh, Mike will be there, too,” she told me. “It wouldn’t be Thanksgiving without his pumpkin pie.  He is very happy for my sister that she is moving on in her life, but none of us sees any reason why that should mean we lose Mike in the process.”

“Brandy” lives in my neighborhood with her husband “John,” John’s 11 year old son “Johnny” from  his first marriage, and 3 year old “Alyssa” – Brandy and John’s daughter.  John’s first wife, “Tracey” lives in an area of our town which lost their power for 6 long days.  On Halloween night I was out trick-or-treating with my kids when who did we see going door-to-door together but Brandy, Johnny, and little Alyssa, all in costumes.  Alyssa was being carried by a woman in a witch’s costume, so it took me a moment to recognize her.  But, of course, it was Johnny’s mom – Tracey.  Alyssa calls her Aunt Tracey. She ate most of her meals and took most of her showers at Brandy and John’s house the week she had no electricity at home. So, it made perfect sense for her to be out in our neighborhood carrying Alyssa from house to house helping her collecting candy and treats.

For more of these anecdotes, please visit my post at http://www.blogsondivorce.com.  And may you and your loved ones be inspired this year to think not only of your divorce or separation in November 2012, but of all of the Thanksgivings, and Halloweens, and even hurricanes to come.  Those of us who survived this storm have a unique opportunity to recalibrate our priorities right now, and to rethink what the words “family,” and “emergency” and “necessity” truly mean.

WHAT WE LOVE:  The rewards that come from doing the right thing, even when no one would blame you for doing the wrong thing.