This post was inspired by an ESPN piece about how rookies mess up their finances. Now people are rarely buying tigers and Bentleys while they are contemplating divorce but they do make a lot of financial mistakes. Here are 10 that I have personally seen. They are in no particular order and some feed off the others. With that said, here we go:
1. Living the Same Way as Before the Divorce. I know I just said no order but this is really number one. Whether you were a two income family supporting one household, or a one income family supporting one household, you are now a two household family. Somebody moved out. That somebody has to pay rent, utilites, buy food for themselves, etc. It's no more one mortgage/rent payment, one household grocery shopping trip. What this translates to is that the same pot of money now has to go twice as far. Just because you are getting divorce does not mean an infinite pot of money magically appears. You are going to have to adjust your spending somewhere. Which brings up #2.
2. No Budget. As noted, the same amount of money has to stretch to cover more things. That means that you have to know where your money is going so know what is really a priority and what is a luxury. You will have to fill out a financial statement of your expenses at some point if you are asking for alimony or attorney's fees (child support has a shorter easier form), so you might as well figure out those expenses now. You don't want to be guessing on your financial form (more on that later). If you tell me you alone spend $600 a month on groceries and you spend $300 on eating out, I am going to wonder what the hell you are thinking. I am also going to be really less than sympathetic to any pleas of poverty. And if I'm not buying it, a judge sure is not going to buy it. Do you really need to spend $1200 a year PER child on Christmas? Do you really need that mani/pedi EVERY WEEK? Doing a budget lets your prioritize so you are suddenly not wondering how to pay the rent because you have no idea where your money went.
3. Using Credit Cards. So money is short and you need to buy the kids' some new clothes. No problem just put it on the credit card right? After all it's for the kids and the judge will order your spouse to pay half of it. Well, no. There is no such thing as marital debt in Maryland. If the card is in your name, you are responsible for paying it. The judge may consider credit card debt when deciding how much alimony you need, but there is no guarantee. Besides, getting alimony is months away and now you have to pay at least the minimum balance on the card each month. You were short money before, where is the money to pay the credit card going to come from? Should you never use credit cards once you are in the process of divorce? Of course not. Sometimes you have no choice. Do what you gotta do. But, be careful what card you are using. If the kids need clothes and you are claiming you are broke, don't be shopping at Nordstrom's. Sears is just fine. Thrift stores are even better. Again, do you want the judge wondering why you had to buy the kids clothes at Nordstrom?
4. Not Knowing About Retirement/Investment Accounts. This is a toughie. Your spouse may be secretative and keep the information from you. That's fine. But you should know how much is in YOUR accounts. There is absolutely no reason to not have the current balance, the name of the account and the account number for things in your own name. If it is a joint account, you have just as much right to have this information as your spouse. If your spouse refuses to give it you, go right to the source, Your name is on it, they can't refuse to give it to you. Knowing this information will help you decide what you really want in a divorce and to plan somewhat you are getting.
5. Buying a New Car. Yes people do this. And by new I mean current model year. Which is the worst thing you can do. Now you owe car payments, plus your car just lost value the minute you drove it off the lot. A decent used car is a better use of your money if you need a car. Definitely don't lease a car. It is not marital property, which you might think is a plus. But, when the lease ends you still need a car. You might not have the funds for it. Again, budget how much payment you can afford and find a nice used cards. Believe it or not, you can get great deals on last year's models from everyone who didn't listen about not leasing.
6. Not Filling Out the Finanical Statement Correctly. As noted you will have to fill out a statement regarding your income, expenses, assets and liabilities. This is 9 pages in Maryland. There is a lot to fill out. But, it is very important to get it right. Over inflate your expenses and the other side will pick them apart at trial. Under inflate and you might not get the alimony you need to support yourself. Be honest. If you spend $600 a month on the family for groceries, explain why. Food allergies, acceptable. I only shop organic because it's in the best interest of the kids is not. Trust me, the chances that the judges' kids ate non-organic food and are just fine are pretty high. "Best interest of the kids" is not a magic formula that excuses everything. Also, you are signing the statement under penalty of perjury. If you get caught materially misrepresenting anything on that form, the court can and will hold it against you.
7. Going on Trips. This doesn't mean never take a vacation while the divorce is pending, but think about your trips. Are you claiming you can't keep the lights on but you take the kids to Six Flags a couple a times a month? Are you going to Disneyland in California but claiming there is no extra money for alimony. Or the worst, are you paying for trips with your new significant other -- and that person's kids -- but claiming no money to take your own kids anywhere? Again, do you want to explain these expenses to a judge? If you have a family reunion in NYC every year, fine. No one should miss a family reunion that you have attended every year of the marriage just due to divorce. But no one wants you just going "Hey I'm FREEE I am can anywhere I want now and no one can tell me otherwise." While techinically true, is that the way you want to spend some of your finite pot of money?
8. Not Paying the Mortgage. Regardless of whose name the house is titled in, both parties have an interest in the property. If you have been paying the mortgage continue to do so. Not paying it hurts your credit. If the mortgage is in the other person's name, if you contribute and you stop and the other person can't make the payment, it makes you look like a jerk. Judges hate jerks. It may even be foreclosed which means everyone -- including you -- loses your interest in the home. The value of the home may be the one chunk of money you have to start life over, don't mess it up.
9. Over Housing Upon Moving Out. For some reason people think they need to have the exact same lifestyle after separating as they had before. If they had a 4 bedroom, two bath house and every kid had their own room, they must have that when they separate. Then they wind up moving some place they can't really afford. Evictions are never pretty. Thnk about what you really need. Are the kids grown up and out of the house? Then why are you hanging onto the house for dear life? Get yourself a smaller place. Easier to clean, cheaper, and probably newer. You can get a spare room for when the kids visit, but you don't need to maintain their rooms exactly as they were. The kids are not moving back in (one hopes). If you have young kids, how much room do you really need? How often will the kids be there? Every other weekend from Friday night to Sunday night? Can you sleep on the couch a couple of nights? If you have joint custody you might need more room. But again, finite pot of money. Your life has changed, your home is not going to be exactly the same every again. So don't try to recreate it.
10. Taxes. Oh my. If you always filed jointly, make sure you have copies of what was filed for at least the last couple of years. Look it over yourself. If your spouse won't give it to you, request it from your accountant or the IRS. If your accountant refuses to give it to you, get from the IRS. Then don't use that accountant again. Yes, people will still continue to use the same accountant they always had even after finding out that accountant had been favoring the other spouse all along. Get an accountant who will protect your interests, not your soon to be ex spouses. Talk to an accountant about the effect of filing separately. Make sure you are clear over who gets to claim the kids. No, just because you are paying child support does not automatically allow you to claim the kids. In fact, physical custody determines the child tax credit. If you filed jointly and you owe back taxes, find out why. Joint tax debt may be allocated by a court (may, possibly, maybe). If your spouse didn't file taxes and you were waiting to file jointly -- stop waiting. File separately. Let your spouse deal with the IRS, keep your own self out of trouble.
Basically this all boils down to think about your money. Know what you are doing with it and why. Know what and who you owe and why. Know what is coming in and what you have as a cushion. The more you know the less stressed about money you will be during the divorce process.
Showing posts with label divorce. Show all posts
Showing posts with label divorce. Show all posts
Sunday, May 8, 2016
Tuesday, November 17, 2015
Missing Spouse
Oh this one comes up a lot lately. I have no idea why there is a sudden run on people wanting a divorce after being separated for years. I mean that literally, years. Then they wander into the clinic or call my office wanting to know how they can get a divorce. Usually no kids no property so pretty easy right? Not so fast. They have no idea where the missing spouse is.
You see there is this pesky thing called the U.S. Constitution. The Sixth Amendment says no on will be deprived of life, liberty or property without due process of law. Now, in a divorce, no one gets killed, and you get liberty not be deprived of it. However, divorce is about property. Pure and simple. Oh and money. But for the purposes we are discussing now, let's just say money is property. That means a decision about the property cannot be made by the court without due process.
What is due process? Well that means the person is afforded a chance to make his/her case in court. In order to be afforded the chance, one has to know there is a court case. That means getting served with the divorce Complaint. The spouse has to receive the documents. If the missing doesn't know about the case, the court is not going to act.
What does this mean for the person wanting a divorce? It means putting in some effort to locate the person. One can't just throw up one's hands and say "I have no idea where they are." It means knowing a last address. It means contacting friends and family. It means going on Facebook and doing a search. If one doesn't put in the effort, the court is not going to make an exception in the case and proceed without proper notice. And I can guarantee the attorney is not going to pay out of pocket to hire a private investigator or even do all the things I suggested for free. If you want to pay an attorney to do the search fine. But if you want the divorce but don't want to pay or don't want to put in the effort, it is not going to happen that simple.
Okay, you've made an effort, you did all those things. You just can't find the person. All is not lost. You can still get what we call "alternate service." But that is the last attempt not the first. You would not believe the people who want to go right to posting at the courthouse. In order to get to alternate service, the judge has to sign off on serving that way. And no judge is going to sign off on just posting without any other efforts being made to locate the person. Because the person has to know there is a court case.
If you want a divorce, get one sooner rather than later. If you wait years, the other person can wander off. Thereby creating huge headaches that a lawyer cannot wave their magic law wand and solve.
You see there is this pesky thing called the U.S. Constitution. The Sixth Amendment says no on will be deprived of life, liberty or property without due process of law. Now, in a divorce, no one gets killed, and you get liberty not be deprived of it. However, divorce is about property. Pure and simple. Oh and money. But for the purposes we are discussing now, let's just say money is property. That means a decision about the property cannot be made by the court without due process.
What is due process? Well that means the person is afforded a chance to make his/her case in court. In order to be afforded the chance, one has to know there is a court case. That means getting served with the divorce Complaint. The spouse has to receive the documents. If the missing doesn't know about the case, the court is not going to act.
What does this mean for the person wanting a divorce? It means putting in some effort to locate the person. One can't just throw up one's hands and say "I have no idea where they are." It means knowing a last address. It means contacting friends and family. It means going on Facebook and doing a search. If one doesn't put in the effort, the court is not going to make an exception in the case and proceed without proper notice. And I can guarantee the attorney is not going to pay out of pocket to hire a private investigator or even do all the things I suggested for free. If you want to pay an attorney to do the search fine. But if you want the divorce but don't want to pay or don't want to put in the effort, it is not going to happen that simple.
Okay, you've made an effort, you did all those things. You just can't find the person. All is not lost. You can still get what we call "alternate service." But that is the last attempt not the first. You would not believe the people who want to go right to posting at the courthouse. In order to get to alternate service, the judge has to sign off on serving that way. And no judge is going to sign off on just posting without any other efforts being made to locate the person. Because the person has to know there is a court case.
If you want a divorce, get one sooner rather than later. If you wait years, the other person can wander off. Thereby creating huge headaches that a lawyer cannot wave their magic law wand and solve.
Tuesday, November 3, 2015
Daily Fantasy and Divorce
No this is not a post about sex. I hear enough about sex as it is, since the no fault grounds requires the parties not to have lived under the same roof or had sexual relations for at least 12 months. Then there is the adultery grounds. Just no more sex, please.
This is about Daily Fantasy Sports sites. They've been in the news lately and Congress is investigating. Oh goodie. How many boxes of reports will that be? Can we bet on the over/under? Ooops sorry. Anyway ...
That's the first issue. Is it gambling or not? Technically no. The NFL and other major sports slipped in an exception to the Internet Gambling Bill that said fantasy sports is not gambling because it requires skill. So does poker, but we can't have that on the internets anymore. Besides, you really want to go into court and split that hair? You think a judge is going to be amused? You are putting money down on proving you can pick better players than the other people in your "league." You can lose that money or you can win it back and then some. If it looks like a duck, it quacks like a duck ...
So, you actually have some skill at DFS and won big. Yeah right. The sites pay for all those ads with the losers money. Chances are you paying for their kids to go to private school instead of your own kids. You really want to explain to a judge that you didn't pay the mortgage because LeSean McCoy went out with a pulled hammy? Or the guy who hit it big last week so you all picked him up was benched this week?
Okay, okay, some people win so they can keep enticing people to play. Guess what? That is now income. No wait it's not because I have losses too, you say. Sure. Still income. As my good friend, Taxgirl pointed out in her great article on DFS, you will get a 1099 from the site at the end of the year with your winnings. 1099 is income for tax purposes. And it darn sure is for child support purposes. The Court likes to find money for child support and takes a broad definition of income. In fact, it Maryland, Sec. 12-201 of the Family Code specifically states that "prizes" may be considered income based on the case. So you can argue it's not gambling, but it is still a prize for winning. Do it on a regular basis and I can almost guarantee a judge will consider it income. And I give very few guarantees about things.
Fine, okay, it's income for child support, but surely not alimony right? Well, maybe not. But alimony is based on ability to pay after your basic necessities are taken care of. Or as one judge put it in a case involving gambling, but not DFS, this is a luxury. Luxuries you can skip altogether and use that money to pay your ex-spouse alimony. Again, if you got money to put down on your "team" that means you have money to spare. If you have money to spare, you can pay to help your spouse out. It is that simple. Or you can put it away for your kids' college education. Even with the low interest rates we have now, it's more a sure thing to grow over time than hoping that your favorite player doesn't get hurt.
Should you never use DFS sites? Well, until Congress gets done, I wouldn't. But, putting a couple bucks down for fun every once and awhile is harmless, if you can afford it. Never ever bet the rent money. And if you do it all the time, not only will you lose in the long run, but it will be considered income.
This is about Daily Fantasy Sports sites. They've been in the news lately and Congress is investigating. Oh goodie. How many boxes of reports will that be? Can we bet on the over/under? Ooops sorry. Anyway ...
That's the first issue. Is it gambling or not? Technically no. The NFL and other major sports slipped in an exception to the Internet Gambling Bill that said fantasy sports is not gambling because it requires skill. So does poker, but we can't have that on the internets anymore. Besides, you really want to go into court and split that hair? You think a judge is going to be amused? You are putting money down on proving you can pick better players than the other people in your "league." You can lose that money or you can win it back and then some. If it looks like a duck, it quacks like a duck ...
So, you actually have some skill at DFS and won big. Yeah right. The sites pay for all those ads with the losers money. Chances are you paying for their kids to go to private school instead of your own kids. You really want to explain to a judge that you didn't pay the mortgage because LeSean McCoy went out with a pulled hammy? Or the guy who hit it big last week so you all picked him up was benched this week?
Okay, okay, some people win so they can keep enticing people to play. Guess what? That is now income. No wait it's not because I have losses too, you say. Sure. Still income. As my good friend, Taxgirl pointed out in her great article on DFS, you will get a 1099 from the site at the end of the year with your winnings. 1099 is income for tax purposes. And it darn sure is for child support purposes. The Court likes to find money for child support and takes a broad definition of income. In fact, it Maryland, Sec. 12-201 of the Family Code specifically states that "prizes" may be considered income based on the case. So you can argue it's not gambling, but it is still a prize for winning. Do it on a regular basis and I can almost guarantee a judge will consider it income. And I give very few guarantees about things.
Fine, okay, it's income for child support, but surely not alimony right? Well, maybe not. But alimony is based on ability to pay after your basic necessities are taken care of. Or as one judge put it in a case involving gambling, but not DFS, this is a luxury. Luxuries you can skip altogether and use that money to pay your ex-spouse alimony. Again, if you got money to put down on your "team" that means you have money to spare. If you have money to spare, you can pay to help your spouse out. It is that simple. Or you can put it away for your kids' college education. Even with the low interest rates we have now, it's more a sure thing to grow over time than hoping that your favorite player doesn't get hurt.
Should you never use DFS sites? Well, until Congress gets done, I wouldn't. But, putting a couple bucks down for fun every once and awhile is harmless, if you can afford it. Never ever bet the rent money. And if you do it all the time, not only will you lose in the long run, but it will be considered income.
Wednesday, October 21, 2015
Finally - Grown Up Divorce in Maryland
As of October 1, 2015, Maryland has a new grounds for divorce. It's called Divorce by Mutual Consent. Or as I like to call it "Grown Adults Deciding They Don't Want to Be Married Anymore." It has some requirements, but it does away with a lot of the more onerous restrictions on obtaining a divorce.
Sadly, this only available to people with no minor children of the marriage. More on that in a bit.
To get a Divorce by Mutual Consent you must:
1. Have no minor children of the marriage (in common, with the other spouse, however you want to term it).
2. Have reached a written settlement agreement resolving all property and financial issues.
3. In Montgomery County, submit a Joint Line Request with Mutual Consent as the grounds.
4. Both parties must appear at the final hearing to assent to the agreement (even if it is already signed).
That's it.
There is no longer any requirment that you live separate and apart for any period of time. This gets rid of the need for people to finance two households for a whole 12 months while waiting to get divorced. Or finding one of the grounds that do no require the 12 month separation period. Those 2 are Adultery and Domestic Violence. You can imagine how well either of those goes over when trying to get a quick, consensual divorce. Even with an agreement, you had to live under separate roofs for 12 months. No more.
Also, no requirment for a corroborating witness, at least in Montgomery County. Both parties have to appear, instead of one. But that beats trying to round up a friend/family member/coworker who knows you well enough to know you haven't slept (in every sense of the word) with your spouse. I've had to put off hearings because a witness couldn't be found.
The hearing length is about the same as for the old uncontested. About 10 minutes. As one speaker noted when we were learning about this new grounds, Courts are not going to be jumping up and down to rush to grant the divorces. However, it is a lot easier to get 10 minutes on the docket than it is to find a day or two for a contested hearing.
The agreement must be in writing and signed by both parties. It has to address everything, all marital property, bank accounts, cars, houses, pensions and alimony. The court will review the agreement for completeness. If you leave anything out, you might not get a divorce. Because once you are divorced, you can't come back and ask for alimony or a share of the pension. So it better either be divided or explicitly waived in the agreement. This is why you still need a lawyer. A lawyer knows what needs to go into an agreement.
The only drawback is if you have kids. You see grown adults with no kids don't have to wait a year, but if you have kids, the 12 month separation under separate roofs still apply. Even if you reach an agreeement. You can have a written custody and property settlement agreement which resolves everything, just like in the Mutual Consent grounds, but if there are kids, you can't get it quick. Why? I don't know. The court will still most likely approval the custody arrangement. The court will still most likely approve the property arrangement. But for some reason, you are not deemed responsible enough to know you need a divorce if you have kids unless you wait a year.
It's a step in the right direction at least.
Sadly, this only available to people with no minor children of the marriage. More on that in a bit.
To get a Divorce by Mutual Consent you must:
1. Have no minor children of the marriage (in common, with the other spouse, however you want to term it).
2. Have reached a written settlement agreement resolving all property and financial issues.
3. In Montgomery County, submit a Joint Line Request with Mutual Consent as the grounds.
4. Both parties must appear at the final hearing to assent to the agreement (even if it is already signed).
That's it.
There is no longer any requirment that you live separate and apart for any period of time. This gets rid of the need for people to finance two households for a whole 12 months while waiting to get divorced. Or finding one of the grounds that do no require the 12 month separation period. Those 2 are Adultery and Domestic Violence. You can imagine how well either of those goes over when trying to get a quick, consensual divorce. Even with an agreement, you had to live under separate roofs for 12 months. No more.
Also, no requirment for a corroborating witness, at least in Montgomery County. Both parties have to appear, instead of one. But that beats trying to round up a friend/family member/coworker who knows you well enough to know you haven't slept (in every sense of the word) with your spouse. I've had to put off hearings because a witness couldn't be found.
The hearing length is about the same as for the old uncontested. About 10 minutes. As one speaker noted when we were learning about this new grounds, Courts are not going to be jumping up and down to rush to grant the divorces. However, it is a lot easier to get 10 minutes on the docket than it is to find a day or two for a contested hearing.
The agreement must be in writing and signed by both parties. It has to address everything, all marital property, bank accounts, cars, houses, pensions and alimony. The court will review the agreement for completeness. If you leave anything out, you might not get a divorce. Because once you are divorced, you can't come back and ask for alimony or a share of the pension. So it better either be divided or explicitly waived in the agreement. This is why you still need a lawyer. A lawyer knows what needs to go into an agreement.
The only drawback is if you have kids. You see grown adults with no kids don't have to wait a year, but if you have kids, the 12 month separation under separate roofs still apply. Even if you reach an agreeement. You can have a written custody and property settlement agreement which resolves everything, just like in the Mutual Consent grounds, but if there are kids, you can't get it quick. Why? I don't know. The court will still most likely approval the custody arrangement. The court will still most likely approve the property arrangement. But for some reason, you are not deemed responsible enough to know you need a divorce if you have kids unless you wait a year.
It's a step in the right direction at least.
Tuesday, September 1, 2015
Same Sex Marriage -- It's the LAW of the Land
What a topic to come back on. Look this is not complicated. Just like with interacial marriage back in 1967, the state is not going to tell consenting adults who they can love (okay polygamy is a whole other topic that I may explore someday).
Marriage carries with it a whole bunch of rights that just cannot be conveyed through a "domestic partnership" or a live in relationship. Rights of inheritance are based on the concept of "marriage." Did you know in Maryland, you can only give your crab license in your Will to a spouse. Not your kids, not your longtime love, your legally recognized spouse. Now Maryland is the home of crabcakes so this kinda of an important thing.
As the Windsor case showed, inheritance taxes between spouses are lower than between unmarried partners. To the tune of hundreds of thousands of dollars in that case.
Maryland had fun with this idea. We actually had gay divorce before we had gay marriage. I find that hilarious. It's just a quirk of timing. Maryland took the "full faith and credit" clause of the Constitution seriously. If you got legally married in another state, you are married in Maryland. If you are legally married, you can get divorced then. Not the big of a leap of logic. The only marriages Maryland doesn't recognize are common law. And that's probably because they are a pain to prove. It takes more than just someone saying "hey I'm married." The Court of Appeals decision came down in May.
It wasn't until voters approved the referenderum the following November that we got gay marriage. Unlike some places (uh-hemm Rowan County, KY), the clerks even made the licenses available before the January 1 effective date so people could get married on New Year's Eve. Awwwwwwww.
No one is going to be divorced from their opposite sex spouse to be forced to marry a same sex partner. It is highly unlikely churches will be forced to perform gay weddings against their wishes (not all churches oppose gay marriage, by the way) since the wedding itself is very much a religious function not an act of the state. But here in Maryland, the licenses have been issued for a couple of years now and the world has not ended. I doubt it will wreak havoc anywhere else in Maryland.
Marriage carries with it a whole bunch of rights that just cannot be conveyed through a "domestic partnership" or a live in relationship. Rights of inheritance are based on the concept of "marriage." Did you know in Maryland, you can only give your crab license in your Will to a spouse. Not your kids, not your longtime love, your legally recognized spouse. Now Maryland is the home of crabcakes so this kinda of an important thing.
As the Windsor case showed, inheritance taxes between spouses are lower than between unmarried partners. To the tune of hundreds of thousands of dollars in that case.
Maryland had fun with this idea. We actually had gay divorce before we had gay marriage. I find that hilarious. It's just a quirk of timing. Maryland took the "full faith and credit" clause of the Constitution seriously. If you got legally married in another state, you are married in Maryland. If you are legally married, you can get divorced then. Not the big of a leap of logic. The only marriages Maryland doesn't recognize are common law. And that's probably because they are a pain to prove. It takes more than just someone saying "hey I'm married." The Court of Appeals decision came down in May.
It wasn't until voters approved the referenderum the following November that we got gay marriage. Unlike some places (uh-hemm Rowan County, KY), the clerks even made the licenses available before the January 1 effective date so people could get married on New Year's Eve. Awwwwwwww.
No one is going to be divorced from their opposite sex spouse to be forced to marry a same sex partner. It is highly unlikely churches will be forced to perform gay weddings against their wishes (not all churches oppose gay marriage, by the way) since the wedding itself is very much a religious function not an act of the state. But here in Maryland, the licenses have been issued for a couple of years now and the world has not ended. I doubt it will wreak havoc anywhere else in Maryland.
Sunday, November 23, 2014
Fun with Twitter -- Henry VII
As many of you know, I have a twitter account (eplawyer). It's supposed to be about family law, but let's fact it, a vast majority of my tweets are about football. It happens. I also enjoy following fictional accounts. I even interact with them, replying to tweets and having a conversation in 140 characters. One of my best Twitter days was the day that the NIHBear, SUETrex, the MarsRat and HenryTudor all replied to me. The MarsRat was a little late, but I put that down to the lag time in communications between Earth and Mars. Is it silly? Sure. But I deal with the messiest parts of people's lives after major illness/injury, divorce and custody. I need some silliness occasionaly.
HenryTudor, better known as Henry VIII is the most fun to interact with. His ego is as big as his girth. Plus he is either a divorce lawyer's dream or nightmare. On the one hand, all that repeat business keeps a roof over one's head and food on one's table. On the other hand, his choosing to behead a couple of wives rather than going to court is a bit off-putting (a bit???). Of course, writing up all those pre-nups would be quite lucrative. What pre-nups? What do you think marriage contracts and betrothal agreements were? But again, he found a rather unconventional way to get out of a couple of those. Beheading again -- with a side of seizure for treason. Yes, cheating on the King was a form of treason.
After one fun exchange about Richard III yesterday, I thought some more about his divorce situation(s). Mainly about his divorce from Anne of Cleves. His divorce from Catherine of Aragon was not pretty. But Anne did all right out of it. First, she got to keep her head. I'm sure she considered that a win right there. But according to Wikipedia (this is a blog, not a legal brief, I can cite Wikipedia here), she got Richmond Palace and Hever Castle. Hever Castle used to belong to the Boleyn family. Guess how they lost it. She got some other properties too and was welcome at court as the King's "Beloved Sister." Pretty good deal and all she had to do was agree to an annulment. Since there is evidence she wasn't that thrilled with the marriage either, this wasn't too hard to do.
If the marriage is over -- accept it, get the best deal you can and move on. You might not be beheaded for not doing so, but hey, you might get Anne's deal out of it.
HenryTudor, better known as Henry VIII is the most fun to interact with. His ego is as big as his girth. Plus he is either a divorce lawyer's dream or nightmare. On the one hand, all that repeat business keeps a roof over one's head and food on one's table. On the other hand, his choosing to behead a couple of wives rather than going to court is a bit off-putting (a bit???). Of course, writing up all those pre-nups would be quite lucrative. What pre-nups? What do you think marriage contracts and betrothal agreements were? But again, he found a rather unconventional way to get out of a couple of those. Beheading again -- with a side of seizure for treason. Yes, cheating on the King was a form of treason.
After one fun exchange about Richard III yesterday, I thought some more about his divorce situation(s). Mainly about his divorce from Anne of Cleves. His divorce from Catherine of Aragon was not pretty. But Anne did all right out of it. First, she got to keep her head. I'm sure she considered that a win right there. But according to Wikipedia (this is a blog, not a legal brief, I can cite Wikipedia here), she got Richmond Palace and Hever Castle. Hever Castle used to belong to the Boleyn family. Guess how they lost it. She got some other properties too and was welcome at court as the King's "Beloved Sister." Pretty good deal and all she had to do was agree to an annulment. Since there is evidence she wasn't that thrilled with the marriage either, this wasn't too hard to do.
If the marriage is over -- accept it, get the best deal you can and move on. You might not be beheaded for not doing so, but hey, you might get Anne's deal out of it.
Monday, October 20, 2014
A Whole Lot of Process Going On
The most common question I get (after how much can I get in child support) is "How long does this take." The answer does not make people happy. Court processes are not quick things. The court wants to make sure everyone involved has adequate notice, then plenty of time to prepare the case. There is guarantee to a speedy trial in a family law case. Better to take it slow and easy to better the chances of getting right than rushing to judgment.
In general, it can take up to a year to have your case heard. Obviously, no kids, no property, no fault grounds for the divorce it can go pretty fast. I had one case where the opposing party showed up to file the Answer at the same time we filed the Complaint. This saved serving the person. We got a hearing in six weeks for the final divorce. It was a very amicable divorce and went quite smoothly. It can be done that quickly if everyone is in agreement.
However, if you are employing an attorney for anything other than making sure all the paperwork is right, it doesn't go that fast.
First you have to file the Complaint. Then the United States Constitution requires due process be afforded the other side. That means they must have notice of the proceedings. You would not believe the number of people who come to me and say they want to file for custody/divorce but don't want the other person to know. Yeah, courts don't work that way. Notice is a must. That means serving them. It would be nice if it could just be mailed, but Maryland requires that if it is mailed, it must be certified mail, restricted delivery, only the Defendant can sign. The Post Office ignores this and lets anyone sign. Anyone but the Defendant signs and you have to serve them again. Personal service, although more expensive than mail is best because you know they got the papers. If they rip them up or throw them away after that, oh well, that's their problem.
If the person lives in Maryland, they have 30 days to file an Answer to the Complaint (longer times for outside Maryland and outside the US). Then the court sets a scheduling hearing usually about 1 1/2 to 2 months after the date the person was served.
At the scheduling hearing, you set trial dates. Oh boy, does this blow clients' minds. I just did a couple of scheduling hearings and I am setting trial dates in April in October. My family teases me about giving me advance notice of stuff. They just don't get that I set stuff months in advance for court so have to plan ahead for family get togethers so I can tell the court not to expect to see me around those days.
In Montgomery County where I mostly practice, if custody is contested, they will split the divorce and custody cases, which makes the process longer. First you set the dates related to custody, then the dates related to divorce. Usually, the custody case is about 3 months after the scheduling hearing. Unless you requested a pendente lite hearing (PL hearing) or a custody evaluation. A PL hearing is fancy lawyer talk for "while the case is pending." As it takes so long, the court sets an interim hearing to decide certain things like a visitation schedule, temporary alimony, temporary child support and even attorney's fees if the party can't continue the case without the attorney being paid and the party can't pay. The PL hearing comes about 2 months after the scheduling and that puts the custody case about 2 months later, to give it time to see how things are going. A custody evaluation is an evaluation by the court of the children and their interaction with the parents. The evaluator makes recommendations about custody and visitation. Because the evaluators need time and they are very busy, they need at least 90 days. So the custody hearing can't be too soon. Plus they have to present the report before the hearing and give the attorneys' time to prepare a response for trial.
Once custody is decided, then you can get into the divorce. There is not another PL hearing, but there will be another pre-trial hearing which is one last ditch attempt to settle before trial. At the pre-trial hearing, you get the trial date for the final divorce. If there is an agreement, you only need a 10 minute hearing. If there are still contested issues, the more time you need the harder it will be to find a trial date. A one day trial is a lot easier to set than a 5 day one. Also, in Montgomery County, they will not set the final divorce trial date until the parties have been separating at least 12 months. The court prefers the final grounds to be the no fault grounds. It's easier to prove, takes less time and affects nothing on the property or financial time. Saves court time for the real things to argue about -- alimony, pension, who get the house, that fun stuff. The final decree doesn't say the grounds for divorce anyway.
But what about emergencies? Sure you can get in for an emergency hearing, but it better be an emergency if you don't want the court to think you are wasting their time. What's an emergency? The judges have made it pretty clear that it means "blood on the floor" someone better be in physical danger. Or someone better be on the way to the airport to take the kids out of the country. Anything less and the court might not act. If it is not an emergency, the court would rather have a full hearing with time to hear from everyone. Good decisions come from full facts and due deliberation, not rushes to judgment.
It sounds long. But it works out for the best to take it slow and easy. Lots of time to settle. Lots of time to explore the case's weaknesses and strengths and gather evidence.
In general, it can take up to a year to have your case heard. Obviously, no kids, no property, no fault grounds for the divorce it can go pretty fast. I had one case where the opposing party showed up to file the Answer at the same time we filed the Complaint. This saved serving the person. We got a hearing in six weeks for the final divorce. It was a very amicable divorce and went quite smoothly. It can be done that quickly if everyone is in agreement.
However, if you are employing an attorney for anything other than making sure all the paperwork is right, it doesn't go that fast.
First you have to file the Complaint. Then the United States Constitution requires due process be afforded the other side. That means they must have notice of the proceedings. You would not believe the number of people who come to me and say they want to file for custody/divorce but don't want the other person to know. Yeah, courts don't work that way. Notice is a must. That means serving them. It would be nice if it could just be mailed, but Maryland requires that if it is mailed, it must be certified mail, restricted delivery, only the Defendant can sign. The Post Office ignores this and lets anyone sign. Anyone but the Defendant signs and you have to serve them again. Personal service, although more expensive than mail is best because you know they got the papers. If they rip them up or throw them away after that, oh well, that's their problem.
If the person lives in Maryland, they have 30 days to file an Answer to the Complaint (longer times for outside Maryland and outside the US). Then the court sets a scheduling hearing usually about 1 1/2 to 2 months after the date the person was served.
At the scheduling hearing, you set trial dates. Oh boy, does this blow clients' minds. I just did a couple of scheduling hearings and I am setting trial dates in April in October. My family teases me about giving me advance notice of stuff. They just don't get that I set stuff months in advance for court so have to plan ahead for family get togethers so I can tell the court not to expect to see me around those days.
In Montgomery County where I mostly practice, if custody is contested, they will split the divorce and custody cases, which makes the process longer. First you set the dates related to custody, then the dates related to divorce. Usually, the custody case is about 3 months after the scheduling hearing. Unless you requested a pendente lite hearing (PL hearing) or a custody evaluation. A PL hearing is fancy lawyer talk for "while the case is pending." As it takes so long, the court sets an interim hearing to decide certain things like a visitation schedule, temporary alimony, temporary child support and even attorney's fees if the party can't continue the case without the attorney being paid and the party can't pay. The PL hearing comes about 2 months after the scheduling and that puts the custody case about 2 months later, to give it time to see how things are going. A custody evaluation is an evaluation by the court of the children and their interaction with the parents. The evaluator makes recommendations about custody and visitation. Because the evaluators need time and they are very busy, they need at least 90 days. So the custody hearing can't be too soon. Plus they have to present the report before the hearing and give the attorneys' time to prepare a response for trial.
Once custody is decided, then you can get into the divorce. There is not another PL hearing, but there will be another pre-trial hearing which is one last ditch attempt to settle before trial. At the pre-trial hearing, you get the trial date for the final divorce. If there is an agreement, you only need a 10 minute hearing. If there are still contested issues, the more time you need the harder it will be to find a trial date. A one day trial is a lot easier to set than a 5 day one. Also, in Montgomery County, they will not set the final divorce trial date until the parties have been separating at least 12 months. The court prefers the final grounds to be the no fault grounds. It's easier to prove, takes less time and affects nothing on the property or financial time. Saves court time for the real things to argue about -- alimony, pension, who get the house, that fun stuff. The final decree doesn't say the grounds for divorce anyway.
But what about emergencies? Sure you can get in for an emergency hearing, but it better be an emergency if you don't want the court to think you are wasting their time. What's an emergency? The judges have made it pretty clear that it means "blood on the floor" someone better be in physical danger. Or someone better be on the way to the airport to take the kids out of the country. Anything less and the court might not act. If it is not an emergency, the court would rather have a full hearing with time to hear from everyone. Good decisions come from full facts and due deliberation, not rushes to judgment.
It sounds long. But it works out for the best to take it slow and easy. Lots of time to settle. Lots of time to explore the case's weaknesses and strengths and gather evidence.
Thursday, September 18, 2014
Facing Reality
Lat post I talked about whether or not you need an attorney for your family law case. I asked some really tough questions that only you can answer before deciding whether or not to hire an attorney. Those questions involve you being realistic about your situation.
Facing reality is hard in a family law situation. Really, really, really hard sometimes. I often refer to it with my clients as the same as a death. It is the death of a marriage or a partnership where you intended to raise your kids together. This leads to a lot of emotions, just like when a loved one dies. Except you still have to deal with the other person. The emotions cover all the stages of grief from anger right up to acceptance. Getting to acceptance can take a long time. How long it takes is different for everyone. But whether or not you are there, the court case is going to happen on its schedule, not yours. So you have to be prepared.
Just like the death of a loved one, a dead marriage is dead. It is no more. It is not "resting." It is not "pining for the fjords." It is a dead parrot -- I mean marriage. Now that doesn't mean marriage counseling can't save a marriage. Or you can't reconcile. Those aren't dead marriages those, those are merely critical marriages that need intervention to be saved. A dead marriage is one where one person is not interested in saving the marriage anymore, he or she wants O.U.T.
Knowing that one person wants out of the marriage can be shown in various ways. Moving in with a significant other and saying "send me my stuff" is a fairly obvious one. If they have already moved on with someone else, they ain't coming back. They have moved on. They will not stand up at the final hearing and say "You know what, you fought so long and so hard to get me back, I realized I still love you. I'm moving back home." Nope, the real thing that happens if you continue to try to force the person to continue the relationship is the person hates you even more than they already do.
Another way to know the relationship is over is when they flat out tell you it is over. "When someone shows you who they really are, believe them," Maya Angelou. If someone says its over and you suggest counseling and they say no, go by yourself. Go to help you deal with the end of the relationship, not because you expect to find a way to get the person back. They showed you they don't want you, accept it.
There are less obvious signs, but if you look at your relationship realistically, you will recognize them for what they are.
What can you do once you realize the relationship is deader than a dead parrot? Protect yourself. Get an attorney to explain your rights to you. Don't believe everything the other person says about the division of property, custody, child support, alimony, etc. You might be married to them but they no longer have your best interest at heart. They are looking out for themselves. You need to look out for yourself and not rely on your partner to protect you anymore. Remember the partner wants O.U.T., not necessarily to be fair and reasonable.
Get counseling if you feel you need it to accept the situation. Lots of people don't want to get counseling because they feel it will be used against them -- especially regarding custody. It won't. Counseling does not equal crazy. Counseling is seeking assistance. And we should all do that when we need a little help. The courts get this.
What will not happen is the court ordering the person to stay married to you. Think about it, the person doesn't want you, is unhappy with you and wants to move on. Totally the court is going to ignore what that person wants and make them stay because that is what you want. In Maryland, once you are living separate and apart for one year, the divorce is pretty much happening. See above for what happens when you fight it. The sooner you accept the marriage is over, the easier it is on you mentally. If you keep fighting it, you only hurt yourself. The other person doesn't care anymore. Does being married give you rights? Sure -- to the stuff. Not to the marriage itself.
It takes 2 people to make a marriage work. If one doesn't want to work at it anymore, there is no marriage. Accept this fact, even if you need some time to deal with it emotionally. Protect yourself legally. But save yourself stress and heartache by facing reality.
Facing reality is hard in a family law situation. Really, really, really hard sometimes. I often refer to it with my clients as the same as a death. It is the death of a marriage or a partnership where you intended to raise your kids together. This leads to a lot of emotions, just like when a loved one dies. Except you still have to deal with the other person. The emotions cover all the stages of grief from anger right up to acceptance. Getting to acceptance can take a long time. How long it takes is different for everyone. But whether or not you are there, the court case is going to happen on its schedule, not yours. So you have to be prepared.
Just like the death of a loved one, a dead marriage is dead. It is no more. It is not "resting." It is not "pining for the fjords." It is a dead parrot -- I mean marriage. Now that doesn't mean marriage counseling can't save a marriage. Or you can't reconcile. Those aren't dead marriages those, those are merely critical marriages that need intervention to be saved. A dead marriage is one where one person is not interested in saving the marriage anymore, he or she wants O.U.T.
Knowing that one person wants out of the marriage can be shown in various ways. Moving in with a significant other and saying "send me my stuff" is a fairly obvious one. If they have already moved on with someone else, they ain't coming back. They have moved on. They will not stand up at the final hearing and say "You know what, you fought so long and so hard to get me back, I realized I still love you. I'm moving back home." Nope, the real thing that happens if you continue to try to force the person to continue the relationship is the person hates you even more than they already do.
Another way to know the relationship is over is when they flat out tell you it is over. "When someone shows you who they really are, believe them," Maya Angelou. If someone says its over and you suggest counseling and they say no, go by yourself. Go to help you deal with the end of the relationship, not because you expect to find a way to get the person back. They showed you they don't want you, accept it.
There are less obvious signs, but if you look at your relationship realistically, you will recognize them for what they are.
What can you do once you realize the relationship is deader than a dead parrot? Protect yourself. Get an attorney to explain your rights to you. Don't believe everything the other person says about the division of property, custody, child support, alimony, etc. You might be married to them but they no longer have your best interest at heart. They are looking out for themselves. You need to look out for yourself and not rely on your partner to protect you anymore. Remember the partner wants O.U.T., not necessarily to be fair and reasonable.
Get counseling if you feel you need it to accept the situation. Lots of people don't want to get counseling because they feel it will be used against them -- especially regarding custody. It won't. Counseling does not equal crazy. Counseling is seeking assistance. And we should all do that when we need a little help. The courts get this.
What will not happen is the court ordering the person to stay married to you. Think about it, the person doesn't want you, is unhappy with you and wants to move on. Totally the court is going to ignore what that person wants and make them stay because that is what you want. In Maryland, once you are living separate and apart for one year, the divorce is pretty much happening. See above for what happens when you fight it. The sooner you accept the marriage is over, the easier it is on you mentally. If you keep fighting it, you only hurt yourself. The other person doesn't care anymore. Does being married give you rights? Sure -- to the stuff. Not to the marriage itself.
It takes 2 people to make a marriage work. If one doesn't want to work at it anymore, there is no marriage. Accept this fact, even if you need some time to deal with it emotionally. Protect yourself legally. But save yourself stress and heartache by facing reality.
Thursday, September 4, 2014
DIY Divorce - Should You?
The short answer is: probably not. Unless you have no kids, no marital property and have lived apart for a year (MD requirement) before filing AND have lived in a Maryland for a year before filing, maybe you can do yourself. Everything else, you need an attorney. And not just because I believe in full employment for family law attorneys.
But wait, do you even know what marital property is? Do you think it is just property that is jointly titled and everything with only one person's name on it is separate property? Not true. Marital property is anything acquired during marriage regardless of how titled, unless inherited, a gift to only party or by agreement not marital property. What about pensions? After all those are earned through one person's job so not marital right? Wrong. Because that money could have been spent on the family now it is considered marital property.
The law is full of nuances. That is why attorneys go to law school, to learn how to work with those nuances. We practice every day to get familiar with those nuances. The judges hear cases about those nuances every day. Do you think you can hit up a few internet sites and be sure you got it right?
Sure those sites exist. Legal Zoom is a favorite. They love to say their forms are accepted for filing in all 50 states. Great wonderful. But clerks will pretty much accept anything for filing as long as it is formatted right. It's the form you care about, it's the substance. Are you sure the generic agreement actually addresses the issues the way a state specific court will?
Take for instance the separation period for a no fault divorce. Every state is different. Maryland requires one year separate and apart. Okay what does that mean? If you don't know exactly what separate and apart means you might not get your divorce.
Custody. Are you really going to entrust the future of your kids to some generic form you found on the internet? These are your kids. Sure you can agree that you and your spouse will share custody. Okay, when are the kids with each parent. Oh you mean mostly with one parent. That is not shared custody. But still when do they see the other parent? By mutual agreement. Wonderful. What happens when the primarily custodial parent never agrees? What happens when you disagree on a non-emergency medical procedure? One parent wants to send the kids to private school, but wants the other parent to pay for it? New significant others? No problem or you want restrictions on when the kids meet?
Do you know how long child support lasts in your state? Do you know how you end it? I had to help a guy in the family law clerk's office once because he was arguing with the clerk that the child support was ended because the kid was iwth him. But he didn't have an order saying that. He could not understand that it was not automatic thing. He also had trouble with the concept of service. He thought just telling the mom about how he wanted child support to end was enough.
Do you know how to properly serve someone so the case goes forward? In Maryland, a party cannot serve the papers.
Then there is the whole emotional thing. Your relationship with the other person is ending, whether through divorce or just two parents who never married going separate ways. I often tell my clients it is just like a death. It's the death of a relationship and you go through all the stages of grief from anger right through acceptance. Sometimes it takes longer to get to acceptance than you think. You might believe you are at acceptance but your actions are still allllllllll the way back at anger. Can you put your emotions aside and do what is in the best interest of your kids? Should your kids really be kept from the other parent or are you just so done with the other parent you want nothing to do with them? You might be done, but the kids are not. Even if kids are not involved, can you divide up the stuff fairly? Do you think you should get everything because the other person cheated on you? Yeah, it doesn't work that way. Adultery may affect the division of property but in reality it rarely does. Basically, can you put your emotions aside to do what needs to be done with the case or are you running the case based on your emotions toward the other person? If you are too emotionally involved, you will not conduct a good case. An attorney cares about the case but is not emotional about it.
To sum up: The person who represents himself has a fool for a client. Get an attorney. Getting it right the first time is worth the cost and waaaaay cheaper than trying to fix it later.
But wait, do you even know what marital property is? Do you think it is just property that is jointly titled and everything with only one person's name on it is separate property? Not true. Marital property is anything acquired during marriage regardless of how titled, unless inherited, a gift to only party or by agreement not marital property. What about pensions? After all those are earned through one person's job so not marital right? Wrong. Because that money could have been spent on the family now it is considered marital property.
The law is full of nuances. That is why attorneys go to law school, to learn how to work with those nuances. We practice every day to get familiar with those nuances. The judges hear cases about those nuances every day. Do you think you can hit up a few internet sites and be sure you got it right?
Sure those sites exist. Legal Zoom is a favorite. They love to say their forms are accepted for filing in all 50 states. Great wonderful. But clerks will pretty much accept anything for filing as long as it is formatted right. It's the form you care about, it's the substance. Are you sure the generic agreement actually addresses the issues the way a state specific court will?
Take for instance the separation period for a no fault divorce. Every state is different. Maryland requires one year separate and apart. Okay what does that mean? If you don't know exactly what separate and apart means you might not get your divorce.
Custody. Are you really going to entrust the future of your kids to some generic form you found on the internet? These are your kids. Sure you can agree that you and your spouse will share custody. Okay, when are the kids with each parent. Oh you mean mostly with one parent. That is not shared custody. But still when do they see the other parent? By mutual agreement. Wonderful. What happens when the primarily custodial parent never agrees? What happens when you disagree on a non-emergency medical procedure? One parent wants to send the kids to private school, but wants the other parent to pay for it? New significant others? No problem or you want restrictions on when the kids meet?
Do you know how long child support lasts in your state? Do you know how you end it? I had to help a guy in the family law clerk's office once because he was arguing with the clerk that the child support was ended because the kid was iwth him. But he didn't have an order saying that. He could not understand that it was not automatic thing. He also had trouble with the concept of service. He thought just telling the mom about how he wanted child support to end was enough.
Do you know how to properly serve someone so the case goes forward? In Maryland, a party cannot serve the papers.
Then there is the whole emotional thing. Your relationship with the other person is ending, whether through divorce or just two parents who never married going separate ways. I often tell my clients it is just like a death. It's the death of a relationship and you go through all the stages of grief from anger right through acceptance. Sometimes it takes longer to get to acceptance than you think. You might believe you are at acceptance but your actions are still allllllllll the way back at anger. Can you put your emotions aside and do what is in the best interest of your kids? Should your kids really be kept from the other parent or are you just so done with the other parent you want nothing to do with them? You might be done, but the kids are not. Even if kids are not involved, can you divide up the stuff fairly? Do you think you should get everything because the other person cheated on you? Yeah, it doesn't work that way. Adultery may affect the division of property but in reality it rarely does. Basically, can you put your emotions aside to do what needs to be done with the case or are you running the case based on your emotions toward the other person? If you are too emotionally involved, you will not conduct a good case. An attorney cares about the case but is not emotional about it.
To sum up: The person who represents himself has a fool for a client. Get an attorney. Getting it right the first time is worth the cost and waaaaay cheaper than trying to fix it later.
Monday, June 9, 2014
The Power of Two
One night at clinic, I was chatting with a client and I realized how much in family law revolves around the number 2. Which makes sense. In family law, you are taking 1 family and splitting it into 2. Fortunately, that is about all the math I have to do. But let's talk about some of the way 2 pops up in a typical case.
First of all is Custody. Oh boy, custody loves the number 2. There are two types of custody -- residential (often called physical) and legal. Residential is where the child puts his/her head at night. Legal is the big decisions like non-emergency medical, or religion to raise the child. Both of these types of custody also have a 2 -- joint (sometimes called shared) and sole. Those are pretty self-evidence. Joint, does not mean 50/50 though. It just means substantial time with both parents. You can get very creative with joint residential custody. One thing the courts tend to hate in Maryland is the week on and week off. Parents seem to think that is the most natural way to do it, Courts do not.
Alimony. In Maryland we have 2 types of alimony -- rehabilitative and permanent. Rehabilitative is what is needed to get the recipient back on their feet and on with their post marital life. Permanent is one where the marriage was of such a length (usually over 20 years) or the receipient because of training, education or disability, or age will never be self-supporting. The court prefers rehabilitative. Neither one is meant to mean equal lifestyles. Just because you were living at the lifestyle of a millionaire before the divorce does not mean you get to live like one afterwards. And rehabilitative alimony means you are expected to get a job at some point. No more having a job that consists of collecting your alimony check each month.
Even the grounds for divorce have a 2 component. In Maryland most of the grounds for divorce require a 12 month separation. And they mean SEPARATE. Not just living in different rooms of the same house, they mean separate roofs. There is a case where the husband was living in the garage apartment but because it was an attached garage that didn't count as separate and apart for the 12 month period. But, there are 2 grounds that do not require at least 12 months separation -- domestic violence and adultery. Which makes complete sense. Both are of such a nature that they destroy any legitmate marriage. Domestic violence is wrong and you should not have to wait a year to divorce someone who dares to treat their spouse in such a manner. Adultery is a little different. It's the 21st Century people have sex. But not everyone approves of sex outside the marriage bounds. If both spouses want to have fun, or approve of an open marriage - no adultery. But if one believes in no extramarital relations, then the legitimate ends of marriage are destroyed by someone cheating.
That pretty much covers it. Today's post was brought to you by the Number 2.
First of all is Custody. Oh boy, custody loves the number 2. There are two types of custody -- residential (often called physical) and legal. Residential is where the child puts his/her head at night. Legal is the big decisions like non-emergency medical, or religion to raise the child. Both of these types of custody also have a 2 -- joint (sometimes called shared) and sole. Those are pretty self-evidence. Joint, does not mean 50/50 though. It just means substantial time with both parents. You can get very creative with joint residential custody. One thing the courts tend to hate in Maryland is the week on and week off. Parents seem to think that is the most natural way to do it, Courts do not.
Alimony. In Maryland we have 2 types of alimony -- rehabilitative and permanent. Rehabilitative is what is needed to get the recipient back on their feet and on with their post marital life. Permanent is one where the marriage was of such a length (usually over 20 years) or the receipient because of training, education or disability, or age will never be self-supporting. The court prefers rehabilitative. Neither one is meant to mean equal lifestyles. Just because you were living at the lifestyle of a millionaire before the divorce does not mean you get to live like one afterwards. And rehabilitative alimony means you are expected to get a job at some point. No more having a job that consists of collecting your alimony check each month.
Even the grounds for divorce have a 2 component. In Maryland most of the grounds for divorce require a 12 month separation. And they mean SEPARATE. Not just living in different rooms of the same house, they mean separate roofs. There is a case where the husband was living in the garage apartment but because it was an attached garage that didn't count as separate and apart for the 12 month period. But, there are 2 grounds that do not require at least 12 months separation -- domestic violence and adultery. Which makes complete sense. Both are of such a nature that they destroy any legitmate marriage. Domestic violence is wrong and you should not have to wait a year to divorce someone who dares to treat their spouse in such a manner. Adultery is a little different. It's the 21st Century people have sex. But not everyone approves of sex outside the marriage bounds. If both spouses want to have fun, or approve of an open marriage - no adultery. But if one believes in no extramarital relations, then the legitimate ends of marriage are destroyed by someone cheating.
That pretty much covers it. Today's post was brought to you by the Number 2.
Thursday, August 22, 2013
Must Be Nice
Tim Duncan recently finalized his divorce in a private hearing held at his attorney's office. Yes, the judge left the courthouse -- on his lunch hour -- to grant Duncan his divorce in private. His ex-wife's attorney was there so clearly it was okay with her. No notice of the hearing appeared on any docket. Must be nice to be able to get a judge to give up his lunch hour to grant your divorce.
Now, there are good reasons for this. The media scrum at the courthouse might have been pretty bad if the hearing were made public. But, on the other hand, court proceedings tend to be open for a reason -- so the average Joe and Jane can see the justice system works. That nothing is hidden. Hearings like this lead people believe there is one system of justice for rich folks like Tim Duncan and one for the rest of us. I work for the rest of us. I represent folks who going to the courthouse and spending time even in court for even a simple uncontested divorce means time missed from work. Unpaid time missed from work. Believe me, I wish I could get the judges to have hearings in off hours so my clients don't have to miss work. But it's not going to happen. First, Judges deserve their lunch hours too and shouldn't miss it just because someone wants a divorce. Second, because the judges are at the courthouse, we go to them, they don't come to us.
Now, Tim and the former Mrs. Duncan are to be commended. They apparently went about getting divorced with minimum fanfare and fuss. They apparently reached an agreement and the divorce hearing today was uncontested. This is great. More people should do this. Fighting over every little thing doesn't save the marriage, it just makes the end of it that much harder on everyone and means the animosity will linger longer. Agree where you can. Be reasonable at all times. The sooner you reach a settlement (without being a doormat, of course) the sooner you can move on with your life.
Now, there are good reasons for this. The media scrum at the courthouse might have been pretty bad if the hearing were made public. But, on the other hand, court proceedings tend to be open for a reason -- so the average Joe and Jane can see the justice system works. That nothing is hidden. Hearings like this lead people believe there is one system of justice for rich folks like Tim Duncan and one for the rest of us. I work for the rest of us. I represent folks who going to the courthouse and spending time even in court for even a simple uncontested divorce means time missed from work. Unpaid time missed from work. Believe me, I wish I could get the judges to have hearings in off hours so my clients don't have to miss work. But it's not going to happen. First, Judges deserve their lunch hours too and shouldn't miss it just because someone wants a divorce. Second, because the judges are at the courthouse, we go to them, they don't come to us.
Now, Tim and the former Mrs. Duncan are to be commended. They apparently went about getting divorced with minimum fanfare and fuss. They apparently reached an agreement and the divorce hearing today was uncontested. This is great. More people should do this. Fighting over every little thing doesn't save the marriage, it just makes the end of it that much harder on everyone and means the animosity will linger longer. Agree where you can. Be reasonable at all times. The sooner you reach a settlement (without being a doormat, of course) the sooner you can move on with your life.
Monday, July 2, 2012
Divorce - NFL Style
The New Orleans Saints have been in the news a lot this offseason. Not always for good reasons. Now they got another headline they probably didn't need. Head Coach Sean Payton has filed for divorce. The usual reasons of "irreconciliable difference" is cited.
Although he coaches in New Orleans, the filings are in Tarrant County, Texas. This is due to a quirk of coaching in the NFL. Coaching jobs can be short in duration. Better to have one home for the kids while dad heads out to work. Makes for not seeing a lot of dad during the season, but at least the kids aren't uprooted every few years.
Mrs. Payton has counterfiled for residential and legal custody of the kids. That means she wants the kids to remain in Tarrant County. Legal custody means she wants to make the decisions about the kids' upbringing. Joint legal might be preferred (at least in Maryland) but sometimes it doesn't work. I can see a judge looking at the work hours of an NFL head coach and just saying, "Decisions about the kids need to be made in a timely fashion, Dad can't do that most months of the year, Mom gets to make decisions." This does not mean Dad is cut out. Dad still has a right to know what is going on with his children. Period. No hiding information just because Mom is the decision-maker.
At least with Payton's year long suspension from coaching, he will have time to devote to this case. On the other hand, it is a suspension without pay. That could make calculating child support interesting. If Dad technically has no income (I forget what Payton is doing this year to keep busy since he can't even attend the Saints games), how can he support the kids? On the other hand, he is expected to work in order to be able to support the kids. Since the Saints have said Payton is coming back as HC next year, a smart lawyer would ask the judge to calculate the child support on his contractual income. Let Payton's lawyer argue against it.
Although he coaches in New Orleans, the filings are in Tarrant County, Texas. This is due to a quirk of coaching in the NFL. Coaching jobs can be short in duration. Better to have one home for the kids while dad heads out to work. Makes for not seeing a lot of dad during the season, but at least the kids aren't uprooted every few years.
Mrs. Payton has counterfiled for residential and legal custody of the kids. That means she wants the kids to remain in Tarrant County. Legal custody means she wants to make the decisions about the kids' upbringing. Joint legal might be preferred (at least in Maryland) but sometimes it doesn't work. I can see a judge looking at the work hours of an NFL head coach and just saying, "Decisions about the kids need to be made in a timely fashion, Dad can't do that most months of the year, Mom gets to make decisions." This does not mean Dad is cut out. Dad still has a right to know what is going on with his children. Period. No hiding information just because Mom is the decision-maker.
At least with Payton's year long suspension from coaching, he will have time to devote to this case. On the other hand, it is a suspension without pay. That could make calculating child support interesting. If Dad technically has no income (I forget what Payton is doing this year to keep busy since he can't even attend the Saints games), how can he support the kids? On the other hand, he is expected to work in order to be able to support the kids. Since the Saints have said Payton is coming back as HC next year, a smart lawyer would ask the judge to calculate the child support on his contractual income. Let Payton's lawyer argue against it.
Sunday, June 3, 2012
Divorce is a Distraction
Football requires focus and confidence. So do most other jobs. Lose your focus in football and you get steamrollered. Lose your focus in your average job and you could get fired. Just ask Quentin Jammer how going through a divorce can affect one.
Jammer had a terrible 2011 season. One reason he gives is that he was going through a divorce. The drinking he admits to probably didn't help either. But the divorce probably triggered everything else.
A divorce is a highly emotional time. You are splitting from the person you once loved. All that love and sense of lost (even if you want the divorce) get all caught up together. It is a rough time. In the meantime, you are expected to function normally and get through every day life. Sometimes all you want to do is scream.
These are normal emotions. What you can't do is let them overwhelm you. You can't dwell constantly on the lost. Or your current feelings for your spouse. If you do, you will lose focus. You will lose confidence. It will definitely make a bad situation worse.
Get help. Talk to a professional. Do not natter on to your friends all the time about it. First of all, they are not professionals, they cannot give you the advice you really need. Also, if all you talk about is your divorce, your friends will soon get sick of being around you. Then they won't be your friends anymore and you will be alone. Again, a bad situation made worse. Definitely do not post each and every feeling you are having to Facebook or Twitter. The whole world does not need to hear the intimiate details of your life. Your spouse's lawyer will have a field day with the posts.
Accept your feelings as normal. If you find yourself unable to cope, get professional help. And hang in there. Time heals all wounds.
Jammer had a terrible 2011 season. One reason he gives is that he was going through a divorce. The drinking he admits to probably didn't help either. But the divorce probably triggered everything else.
A divorce is a highly emotional time. You are splitting from the person you once loved. All that love and sense of lost (even if you want the divorce) get all caught up together. It is a rough time. In the meantime, you are expected to function normally and get through every day life. Sometimes all you want to do is scream.
These are normal emotions. What you can't do is let them overwhelm you. You can't dwell constantly on the lost. Or your current feelings for your spouse. If you do, you will lose focus. You will lose confidence. It will definitely make a bad situation worse.
Get help. Talk to a professional. Do not natter on to your friends all the time about it. First of all, they are not professionals, they cannot give you the advice you really need. Also, if all you talk about is your divorce, your friends will soon get sick of being around you. Then they won't be your friends anymore and you will be alone. Again, a bad situation made worse. Definitely do not post each and every feeling you are having to Facebook or Twitter. The whole world does not need to hear the intimiate details of your life. Your spouse's lawyer will have a field day with the posts.
Accept your feelings as normal. If you find yourself unable to cope, get professional help. And hang in there. Time heals all wounds.
Monday, April 23, 2012
Don't Tweet Your Divorce
Honestly people. Some things should be kept private. Your divorce and the whole mess you are going through with your spouse is one of those things. But what can one expect from "Primetime?" Yep, Deion Sanders is taking to twitter about his divorce. He decided to tell all his followers about the difficulties he is having with his soon to be ex-wife. This is such a bad idea.
First there are the evidentiary issues. Twitter is not private. Everything you post on Twitter, Facebook, MySpace (for the two users of MySpace left), linked in, Pinterest and every other darn social media site is pretty much public information now. Which means it can be used by either party in the divorce. There is no claim of privilege or privacy. So, of above all, don't be posting advice your attorney gives you anywhere on the internet. That destroys attorney-client privilege.
But also, don't be posting how you are going to mess your spouse up, how you are going to get the kids and make sure your spouse never sees them, or anything like that. Don't even post like Deion Sanders did about an alleged assault. It doesn't make your spouse look near as bad as you think it does. It does make it you look like a big jerk. Guess how well courts like someone that comes across as a big jerk? Here's a hint -- not much.
Second of all, your children will read your postings. Your kids do not need to see you badmouthing the other parent in a public forum. Believe it or not, this does not make the kids love you more. It just makes them feel caught in the middle. It makes them feel like they are doing something wrong by loving the other parent. Don't put your kids in that position. Keep your feelings about the other parent to yourself. If you must let it out, don't do it in a way that your kids can find out. Trust me, that they will love you for.
Take the high road. Don't post. Be the reasonable one. It's a lot easier to get the court to see your point of view if you are reqsonable. It's not reasonable to be spreading tales all over the internet.
First there are the evidentiary issues. Twitter is not private. Everything you post on Twitter, Facebook, MySpace (for the two users of MySpace left), linked in, Pinterest and every other darn social media site is pretty much public information now. Which means it can be used by either party in the divorce. There is no claim of privilege or privacy. So, of above all, don't be posting advice your attorney gives you anywhere on the internet. That destroys attorney-client privilege.
But also, don't be posting how you are going to mess your spouse up, how you are going to get the kids and make sure your spouse never sees them, or anything like that. Don't even post like Deion Sanders did about an alleged assault. It doesn't make your spouse look near as bad as you think it does. It does make it you look like a big jerk. Guess how well courts like someone that comes across as a big jerk? Here's a hint -- not much.
Second of all, your children will read your postings. Your kids do not need to see you badmouthing the other parent in a public forum. Believe it or not, this does not make the kids love you more. It just makes them feel caught in the middle. It makes them feel like they are doing something wrong by loving the other parent. Don't put your kids in that position. Keep your feelings about the other parent to yourself. If you must let it out, don't do it in a way that your kids can find out. Trust me, that they will love you for.
Take the high road. Don't post. Be the reasonable one. It's a lot easier to get the court to see your point of view if you are reqsonable. It's not reasonable to be spreading tales all over the internet.
Sunday, January 1, 2012
New Year's Resolution
Got a little behind in posting. My trial schedule was a little unbelievable. Then I was too exhausted over the holidays to do anything. Sorry about that.
Here's what I missed:
Kobe Bryant's wife filed for divorce. Apparently there was no pre-nup. All I gotta say on that one is "What an idiot." The guy makes millions because of his unique ability to play basketball, yet he does not protect his ass -ets by having a pre-nup. This is the wife he had a lot of explaining to do back in 2004, that one cost him a big old ring. This divorce could cost him even more.
Floyd Mayweather is sentenced to 90 days in jail for domestic violence. Well, it's a start. But 90 days is hardly getting tough on the crime of domestic violence. He must report to jail by January 6. Happy New Year, Floyd.
Okay, there are probably other stories. I promise to do better in 2012. More stories (provided the athletes cooperate), more analysis. All provided in a timely analysis.
Hope 2012 is a wonderful year for everyone.
Here's what I missed:
Kobe Bryant's wife filed for divorce. Apparently there was no pre-nup. All I gotta say on that one is "What an idiot." The guy makes millions because of his unique ability to play basketball, yet he does not protect his ass -ets by having a pre-nup. This is the wife he had a lot of explaining to do back in 2004, that one cost him a big old ring. This divorce could cost him even more.
Floyd Mayweather is sentenced to 90 days in jail for domestic violence. Well, it's a start. But 90 days is hardly getting tough on the crime of domestic violence. He must report to jail by January 6. Happy New Year, Floyd.
Okay, there are probably other stories. I promise to do better in 2012. More stories (provided the athletes cooperate), more analysis. All provided in a timely analysis.
Hope 2012 is a wonderful year for everyone.
Sunday, October 23, 2011
Could Football Have a McCourt Problem?
On Friday, I had the honor of meeting and speaking to Richard Cass, the President of the Baltimore Ravens. He was the keynote speaker at a conference I was attending. I also got a chance to speak to him at the reception after the conference. He even shook my hand. Squeeing like a fan girl would not have been professional, but I really wanted to do so.
During his speech, Mr. Cass mentioned that one of the cool things about the NFL was that it was basically 31 family owned teams -- and Green Bay which is community owned. It makes it easier to know who is in charge of the team and makes for a different attitude towards the business of football. Now some could argue that the idea of an NFL team as a Mom and Pop business is long gone. Let the business blogs argue that one out. This is a family law blog.
Which brings up my concern. If the team is family owned, what happens when the family disintegrates? What happens when Mom and Pop split up? We also saw what happened to the Dodgers in the McCourt divorce (quick note, that one finally settled - Frank got the team, Jami got cash, MLB still ticked at everyone involved).
I asked Mr. Cass that very question. He very graciously answered me. Seriously, the guy is super nice and approachable. He said it was unlikely to happen because the teams are not business where you have to sort out shares, etc. In the NFL one person has to own at least 30% and one person has to have total voting control. He also mentioned that the NFL has debt limits rules to keep a team's finances from getting too out of whack.
All that may be true, but Mr. Cass is clearly not a family law attorney. I hate to disagree with such a great guy, but I just don't see how these things save a team from a McCourt style fight over ownership. I raised these issues in a previous post of the Blank divorce and the Falcons.
Yes, the teams are family owned. But to keep the families from being personally liable for the debts of a team, they tend to be corporations or limited liability partnerships. One person may have voting control, but they are still businesses.
Businesses get divided in divorces ALL the time. A spouse may have made monetary contributions to the business. A spouse may have made non-monetary contributions such as working at the business without pay or even just making sure the face of the business has a clean shirt and ate recently. All of these factors go into dividing up a business.
In community property states such as California or Texas, the law may consider the teams to be comunity property automatically entitling the spouse to half. This would effect 5 teams in the NFL -- the Chargers, the 49ers, the Raiders, the Texans and the Cowboys. Other states may also be community property states.
Marital property states, such as Maryland where the Ravens are based, would consider whether marital funds were used to purchase or maintain the team. Marital funds are any money earned during the course of the marriage (with some exceptions). In a marital property state, the court would consider the contributions of each spouse, the source of the funds, and what an equitable distribution of the property would be.
It is conceivable that a court may consider a team part of the community/marital property subject to division in th event of a divorce. A court is not really going to care about the NFL bylaws -- except for possibly guidance on how teams are owned, structured and what the League might do in the event of a court fight. But, the NFL bylaws are not the law of the land. A judge is bound to apply the rules of the state in which the court hearing the divorce is located.
All is not lost. The team is probably not the only asset of the divorcing couple. They most likely have other assets in the pot of community/marital property that need to be divided up. Contrary to popular belief, it is not half of everything as in half of each thing. It is half (or whatever figure) of the total. So in this situation, a judge realizing the NFL really frowns on split ownership (remember guidance of the bylaws) such that frowning could result in the complete loss of the asset to both parties, will most likely give the team to one party and more cash and other assets to the other party. In other words, one spouse gets the team and the other spouse gets more of the other goodies in the pot.
Of course, the problem arises when BOTH spouses want to control the team. A judge is probably not going to divide ownership -- even without the bylaws -- because that would require the spouses to continue working together. If they got along, they wouldn't be getting a divorce. A judge would have to choose between the spouses. Some very fancy lawyering would have to go on here. If someone is determined to keep ownership of a team in event of a divorce and can afford to keep fighting, this would go to trial.
In summary, sorry, Mr. Cass, I can see a prolonged court fight over control of a team despite all the rules the NFL has in place. Just because it hasn't happened yet, doesn't meant it won't.
During his speech, Mr. Cass mentioned that one of the cool things about the NFL was that it was basically 31 family owned teams -- and Green Bay which is community owned. It makes it easier to know who is in charge of the team and makes for a different attitude towards the business of football. Now some could argue that the idea of an NFL team as a Mom and Pop business is long gone. Let the business blogs argue that one out. This is a family law blog.
Which brings up my concern. If the team is family owned, what happens when the family disintegrates? What happens when Mom and Pop split up? We also saw what happened to the Dodgers in the McCourt divorce (quick note, that one finally settled - Frank got the team, Jami got cash, MLB still ticked at everyone involved).
I asked Mr. Cass that very question. He very graciously answered me. Seriously, the guy is super nice and approachable. He said it was unlikely to happen because the teams are not business where you have to sort out shares, etc. In the NFL one person has to own at least 30% and one person has to have total voting control. He also mentioned that the NFL has debt limits rules to keep a team's finances from getting too out of whack.
All that may be true, but Mr. Cass is clearly not a family law attorney. I hate to disagree with such a great guy, but I just don't see how these things save a team from a McCourt style fight over ownership. I raised these issues in a previous post of the Blank divorce and the Falcons.
Yes, the teams are family owned. But to keep the families from being personally liable for the debts of a team, they tend to be corporations or limited liability partnerships. One person may have voting control, but they are still businesses.
Businesses get divided in divorces ALL the time. A spouse may have made monetary contributions to the business. A spouse may have made non-monetary contributions such as working at the business without pay or even just making sure the face of the business has a clean shirt and ate recently. All of these factors go into dividing up a business.
In community property states such as California or Texas, the law may consider the teams to be comunity property automatically entitling the spouse to half. This would effect 5 teams in the NFL -- the Chargers, the 49ers, the Raiders, the Texans and the Cowboys. Other states may also be community property states.
Marital property states, such as Maryland where the Ravens are based, would consider whether marital funds were used to purchase or maintain the team. Marital funds are any money earned during the course of the marriage (with some exceptions). In a marital property state, the court would consider the contributions of each spouse, the source of the funds, and what an equitable distribution of the property would be.
It is conceivable that a court may consider a team part of the community/marital property subject to division in th event of a divorce. A court is not really going to care about the NFL bylaws -- except for possibly guidance on how teams are owned, structured and what the League might do in the event of a court fight. But, the NFL bylaws are not the law of the land. A judge is bound to apply the rules of the state in which the court hearing the divorce is located.
All is not lost. The team is probably not the only asset of the divorcing couple. They most likely have other assets in the pot of community/marital property that need to be divided up. Contrary to popular belief, it is not half of everything as in half of each thing. It is half (or whatever figure) of the total. So in this situation, a judge realizing the NFL really frowns on split ownership (remember guidance of the bylaws) such that frowning could result in the complete loss of the asset to both parties, will most likely give the team to one party and more cash and other assets to the other party. In other words, one spouse gets the team and the other spouse gets more of the other goodies in the pot.
Of course, the problem arises when BOTH spouses want to control the team. A judge is probably not going to divide ownership -- even without the bylaws -- because that would require the spouses to continue working together. If they got along, they wouldn't be getting a divorce. A judge would have to choose between the spouses. Some very fancy lawyering would have to go on here. If someone is determined to keep ownership of a team in event of a divorce and can afford to keep fighting, this would go to trial.
In summary, sorry, Mr. Cass, I can see a prolonged court fight over control of a team despite all the rules the NFL has in place. Just because it hasn't happened yet, doesn't meant it won't.
Friday, September 9, 2011
The Pain of Divorce
Last night I was working at a pro bono clinic. Slow night due to all the rain we have had. Another attorney -- who does not do family law -- and I were talking. He mentioned some scene in Entourage (a show I have not scene) where the agent says he would murder his wife rather than go through the pain of divorce.
Now, I get it. Divorce is horribly painful -- both emotionally and financially. It is basically saying that the people once in love now can't stand to live together. All that warm fuzzy love turns to cold prickly hate. It can get messy, even for the most calm, mature person.
Then there is the financial aspect. You gotta decide who gets what and how much. If you worked hard to develop your skills to advance in your chosen profession, it really sucks to hand half of it to someone else. (Of course most people ignore the help the other spouse provided so that you could develop the skills to advance in your chosen profession).
But murder? Really? That is the better choice?
Let's compare for a moment the two options.
Divorce:
Dividing up the stuff. Sure your spouse gets half (for the sake of simplicity, we are going with a straight division of property, MMV in each particular case). But only the half that was earned up to the date of the divorce. After that, you got all the rest of your life to accumulate more -- that your ex can't have. If you do remarry -- Prenup is a really good idea to protect your new stuff.
Alimony. Maryland has moved away from permanent alimony, and I believe so have most states. Permanent alimony was a check to the spouse for the rest of the spouse's life or until the spouse remarried. Not a lot of incentive to move on with one's life there. Now, the courts favor something called rehabilitative alimony. Rehabilitative alimony is only for a limited time until the spouse can get back on his/her feet and become self-supporting. Incentive to get off one's butt and work, because the checks won't keep coming forever. There are a lot of factors to consider in determining rehabilitative alimony: length of marriage, age of kids if any, skills of the spouse, time needed to acquire a job or skills to become self-supporting. But, the key here is that it ends at a definite date. It is over eventually. Then you never have to pay the spouse again. Your ex can't come back and say "Oh I know I was supposed to be self-supporting by now, but I'm not, keep paying."
In summary: After a painful period of time, the divorce is over and you get to go on with your life, accumulating more stuff and keeping the money you earn.
Murder
You will get caught. You will go to jail for the rest of your life. You will not have the opportunity to enjoy all the stuff you managed to keep your spouse from having, you will not have any money to spend because you lost your job because you went to jail. You will have no opportunity to recover from this because you will most likely die in jail.
In summary: You never get a chance to recover from being an idiot for thinking murder was a good option.
Did I make that clear for everyone?
One final note: bet a family law lawyer is cheaper than a criminal lawyer in the long run too.
Now, I get it. Divorce is horribly painful -- both emotionally and financially. It is basically saying that the people once in love now can't stand to live together. All that warm fuzzy love turns to cold prickly hate. It can get messy, even for the most calm, mature person.
Then there is the financial aspect. You gotta decide who gets what and how much. If you worked hard to develop your skills to advance in your chosen profession, it really sucks to hand half of it to someone else. (Of course most people ignore the help the other spouse provided so that you could develop the skills to advance in your chosen profession).
But murder? Really? That is the better choice?
Let's compare for a moment the two options.
Divorce:
Dividing up the stuff. Sure your spouse gets half (for the sake of simplicity, we are going with a straight division of property, MMV in each particular case). But only the half that was earned up to the date of the divorce. After that, you got all the rest of your life to accumulate more -- that your ex can't have. If you do remarry -- Prenup is a really good idea to protect your new stuff.
Alimony. Maryland has moved away from permanent alimony, and I believe so have most states. Permanent alimony was a check to the spouse for the rest of the spouse's life or until the spouse remarried. Not a lot of incentive to move on with one's life there. Now, the courts favor something called rehabilitative alimony. Rehabilitative alimony is only for a limited time until the spouse can get back on his/her feet and become self-supporting. Incentive to get off one's butt and work, because the checks won't keep coming forever. There are a lot of factors to consider in determining rehabilitative alimony: length of marriage, age of kids if any, skills of the spouse, time needed to acquire a job or skills to become self-supporting. But, the key here is that it ends at a definite date. It is over eventually. Then you never have to pay the spouse again. Your ex can't come back and say "Oh I know I was supposed to be self-supporting by now, but I'm not, keep paying."
In summary: After a painful period of time, the divorce is over and you get to go on with your life, accumulating more stuff and keeping the money you earn.
Murder
You will get caught. You will go to jail for the rest of your life. You will not have the opportunity to enjoy all the stuff you managed to keep your spouse from having, you will not have any money to spend because you lost your job because you went to jail. You will have no opportunity to recover from this because you will most likely die in jail.
In summary: You never get a chance to recover from being an idiot for thinking murder was a good option.
Did I make that clear for everyone?
One final note: bet a family law lawyer is cheaper than a criminal lawyer in the long run too.
Friday, September 2, 2011
Another Divorce, Another Team
It was announced today that Arthur Blank and his wife of 16 years are separating. Arthur Blank is the owner of the Atlanta Falcons. He married his current wife in 1995 and bought the team in 2002. The press release said the separation will have no effect on his business enterprises.
The last time this happened was the McCourt divorce which engulfed the Dodgers. The mess got so bad that MLB had to take over running the team.
Most NFL teams are owned by corporations, although NFL Bylaws require one person to have majority ownership. The NFL wants one person making the decisions. That person might then incorporate in order to protect assets or for other business reasons. So, it sounds like everything would be protected in the event of a divorce.
I reached out to a friend who is a Georgia lawyer to see if GA is a community property state (He's also a Falcons fan). No word yet from him on the news.
If Georgia is a community property state and he bought the team with marital funds, even if he incorporated, she has rights to the team. (Or some share of it). Here's why. There might be a corporation that owns the Falcons. But corporations issues shares. If his shares have any value, they are a marital asset. Which means they can be divided in the event of a divorce. If GA is a marital property state, same thing essentially.
Now, it is possible that Blank bought the team with separate funds earned before the parties married. If the source of the funds for buying the team can be traced to separate -- not marital -- property, then the team is free and clear.
Also, it is possible that unlike Jami McCourt, Mrs. Blank wants nothing to do with running a team. She may relinquish her interest in the team in exchange for some other financial consideration. Happens all the time in divorces. Okay, usually not sports teams, but there is always something that someone really wants.
That is why practicing family law is so much fun. You can get creative. You can negotiate and think outside the box to reach a solution agreeable to all parties. You don't have to go to court and pursue a scorched earth strategy. In fact, court is not a good place to get what you want. The court is bound by statutes, precedent and other considerations. There may limits to what a court can grant. But, a really good family law attorney can reach an agreement that a court could not grant, but is still enforceable and acceptable.
Here's hoping the Blanks go the peaceful route not the McCourt route. Football just survived one nasty court fight, it does not need another one.
The last time this happened was the McCourt divorce which engulfed the Dodgers. The mess got so bad that MLB had to take over running the team.
Most NFL teams are owned by corporations, although NFL Bylaws require one person to have majority ownership. The NFL wants one person making the decisions. That person might then incorporate in order to protect assets or for other business reasons. So, it sounds like everything would be protected in the event of a divorce.
I reached out to a friend who is a Georgia lawyer to see if GA is a community property state (He's also a Falcons fan). No word yet from him on the news.
If Georgia is a community property state and he bought the team with marital funds, even if he incorporated, she has rights to the team. (Or some share of it). Here's why. There might be a corporation that owns the Falcons. But corporations issues shares. If his shares have any value, they are a marital asset. Which means they can be divided in the event of a divorce. If GA is a marital property state, same thing essentially.
Now, it is possible that Blank bought the team with separate funds earned before the parties married. If the source of the funds for buying the team can be traced to separate -- not marital -- property, then the team is free and clear.
Also, it is possible that unlike Jami McCourt, Mrs. Blank wants nothing to do with running a team. She may relinquish her interest in the team in exchange for some other financial consideration. Happens all the time in divorces. Okay, usually not sports teams, but there is always something that someone really wants.
That is why practicing family law is so much fun. You can get creative. You can negotiate and think outside the box to reach a solution agreeable to all parties. You don't have to go to court and pursue a scorched earth strategy. In fact, court is not a good place to get what you want. The court is bound by statutes, precedent and other considerations. There may limits to what a court can grant. But, a really good family law attorney can reach an agreement that a court could not grant, but is still enforceable and acceptable.
Here's hoping the Blanks go the peaceful route not the McCourt route. Football just survived one nasty court fight, it does not need another one.
Friday, August 26, 2011
Shut the Heck Up
Gilbert Arenas lost his bid to keep his ex-girlfriend/fiance from appearing on the show Basketball Wives (a misnomer of a reality show as all the participants are ex-wives or ex-girlfriends of b-ball players). One of his arguments in asking for the injunction was the invasion of his privacy that would occur if the ex were allowed on the show to complain about him. The judge found that this claim was so much noise signifying nothing. Specifically, Arenas has a twitter account -- with allegedly thousands of followers -- from which he tweets constantly about his personal life. In other words, you can't claim your personal life is personal if you splash it all over the internet.
Newsflash: the internet is not private.
Everything you post on the internet is public. Someone somewhere will see it. Even if you have "privacy" settings, do the people who have access to your "private" account also have privacy settings? Do their friends? And so on and so on and so on. If you post it, they will see it.
This is true for celebrities with thousands of twitter followers and true for folks with all of 5 friends on Facebook. Let me repeat: the internet is not private.
If you are going through a custody/divorce/child support, do not post on facebook, twitter, google+ or anyplace on the internet anything about your ex. Just don't. Smart attorneys (like me) will get that information and use it against you. The judge won't buy your argument of "I was just venting, I didn't think anyone would see it."
Besides, do you want your kids to see what you posted about the other parent or have their friends see it? It doesn't help the situation, can only hurt it, so just don't do it. Resist the temptation to "get even."
If you have been so foolish as to do post all over the internet what a jerkface your ex is, do not then try to remove it. You can bet your last pleading that someone already screen captured the posting and sent it to your ex. Who then helpfully forwarded it to the lawyer. Now, they can bring up something called "spoliation of evidence" meaning you destroyed possible evidence in the case. This is a very bad thing to have happen.
One last thing about the internet, do not friend your ex, or have your friends do so for you just to gather incriminating evidence. Yeah, it sounds like a good idea. In practice it 1) doesn't help things at all and 2) just makes you look petty and vindicative in court. As an attorney, I really try to avoid having my clients look petty and vindicative.
In short -- SHUT THE HELL UP. It will help your case much better than any posting anywhere on the internet you can make.
Newsflash: the internet is not private.
Everything you post on the internet is public. Someone somewhere will see it. Even if you have "privacy" settings, do the people who have access to your "private" account also have privacy settings? Do their friends? And so on and so on and so on. If you post it, they will see it.
This is true for celebrities with thousands of twitter followers and true for folks with all of 5 friends on Facebook. Let me repeat: the internet is not private.
If you are going through a custody/divorce/child support, do not post on facebook, twitter, google+ or anyplace on the internet anything about your ex. Just don't. Smart attorneys (like me) will get that information and use it against you. The judge won't buy your argument of "I was just venting, I didn't think anyone would see it."
Besides, do you want your kids to see what you posted about the other parent or have their friends see it? It doesn't help the situation, can only hurt it, so just don't do it. Resist the temptation to "get even."
If you have been so foolish as to do post all over the internet what a jerkface your ex is, do not then try to remove it. You can bet your last pleading that someone already screen captured the posting and sent it to your ex. Who then helpfully forwarded it to the lawyer. Now, they can bring up something called "spoliation of evidence" meaning you destroyed possible evidence in the case. This is a very bad thing to have happen.
One last thing about the internet, do not friend your ex, or have your friends do so for you just to gather incriminating evidence. Yeah, it sounds like a good idea. In practice it 1) doesn't help things at all and 2) just makes you look petty and vindicative in court. As an attorney, I really try to avoid having my clients look petty and vindicative.
In short -- SHUT THE HELL UP. It will help your case much better than any posting anywhere on the internet you can make.
Sunday, June 19, 2011
McCourts in Court - Update
UPDATE: I knew I should have posted this sooner. MLB rejected the tv deal today 6/20/11. Bud Selig said it would benefit Frank personally too much. This voids the settlement. The War of the McCourts is back on. Again, the lawyers should have planned for this obvious contingency.
They are defintely going back to Court. The McCourts have agreed to have a trial. Umm, that is usually what happens when they can't agree. An agreement usually avoids a trial.
Apparently, the McCourts are so hung up on who owns the Dodgers (not a lot of argument over anything else) that all they could agree to was to have a one day trial on whether or not the team is community property. If it is community property, Frank can buy Jamie out. If it is separate property, then Jamie gets $100 million and all the houses. No word on what happens to the houses if the team is community property.
Of there are asterisks all over the place. First of all, MLB must approve the settlement. Considering Bud Selig is not happy with the McCourts right now, that is not a done deal. MLB must also approve the Fox TV deal so that Frank has the money to buy out Jami if necessary (they got SIX houses, surely unloading a couple of those might help his finances). See the previous sentence about Bud Selig's opinion of the McCourts.
Now most folks don't have a baseball team to argue over. But, you would be amazed at what people will argue over in a divorce. It's not about the object that is the point of contention. It's about not letting the other person have it. With a sports team, there is also the prestige of owning such a team. A prestige that can be denied to the spouse.
However, the key to remember in any divorce is not so much what you get, but the end goal. You want a divorce. You want this person out of your life. If you continue to fight, you still have to interact with the person. Which can be the other person's motivation. By refusing to engage, you get what you really want -- freedom -- and deny the other person their desire -- continued interaction.
This does not mean be a doormat. But it does mean sometimes walking away rather than continuing to fight. Sometimes keeping the bigger picture in mind is the best strategy.
Someone tell the McCourts this (but not their expensive lawyers who don't even know how to hit print more than once).
They are defintely going back to Court. The McCourts have agreed to have a trial. Umm, that is usually what happens when they can't agree. An agreement usually avoids a trial.
Apparently, the McCourts are so hung up on who owns the Dodgers (not a lot of argument over anything else) that all they could agree to was to have a one day trial on whether or not the team is community property. If it is community property, Frank can buy Jamie out. If it is separate property, then Jamie gets $100 million and all the houses. No word on what happens to the houses if the team is community property.
Of there are asterisks all over the place. First of all, MLB must approve the settlement. Considering Bud Selig is not happy with the McCourts right now, that is not a done deal. MLB must also approve the Fox TV deal so that Frank has the money to buy out Jami if necessary (they got SIX houses, surely unloading a couple of those might help his finances). See the previous sentence about Bud Selig's opinion of the McCourts.
Now most folks don't have a baseball team to argue over. But, you would be amazed at what people will argue over in a divorce. It's not about the object that is the point of contention. It's about not letting the other person have it. With a sports team, there is also the prestige of owning such a team. A prestige that can be denied to the spouse.
However, the key to remember in any divorce is not so much what you get, but the end goal. You want a divorce. You want this person out of your life. If you continue to fight, you still have to interact with the person. Which can be the other person's motivation. By refusing to engage, you get what you really want -- freedom -- and deny the other person their desire -- continued interaction.
This does not mean be a doormat. But it does mean sometimes walking away rather than continuing to fight. Sometimes keeping the bigger picture in mind is the best strategy.
Someone tell the McCourts this (but not their expensive lawyers who don't even know how to hit print more than once).
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