You may have a tea pot collection, or civil war memorabilia or model trains. You have a pretty good idea who would enjoy this collection and want to make sure they get it when you are gone. Should you put it in your Will? How often will you have to re-write your Will as your collections vary and you have new friends. There is a very practical solution I recommend to my clients.
You don't list these physical items in your Will but you do reference a list which you may change from time to time. Then make a list of your special item and the member of your collector group who would so enjoy it. Be sure and date the list. Then as you change you mind or your collection changes you can write a new list. Sign and date the list (no notary or witnesses needed). This way you can keep current without having to change your will or write a codicil.
This list can include anything you want including household items, clothing, or your best cookpot. Whatever you think someone else might treasure. Having this list can avert family disputes later as there will be no question as to who was to receive the button collection.
If you don't have anything special to list, then just direct your personal representative to dispose as she sees fit. Be sure to give latitude to give away as well as sell.
Any other questions?
Tuesday, December 8, 2009
Friday, December 4, 2009
Minor Children and No Will?
If you have minor children you definitely should have a will. Parents I talk to say they've been meaning to get around to it, they can't afford it, or don't see why they need one because they have no "estate". I have added estate planning to my practice to counter these very arguments. My intention is to make it affordable and easy to take care of this important matter.
If you have life insurance, and you should, your children will have an estate.
Here are the provisions you should have in your will.
Guardian of a minor child
A guardian is the person you designate to take care of your children if both parents are dead. If a parent dies the other parent automatically is the guardian. Even if the parents are divorced the children would go with the other parent unless a court has found something seriously wrong with that parent. While you can state your preference in your will, the other parent has precedence.
The designated guardian should be someone you feel will raise your children with the same values you would. Some parents make a mutual pact with another family to serve as guardians for their children. If you don't have a will, the state will make a determination. You don't want to risk having your children with Child Protective Services until a guardian is selected.
If your chosen guardian lives far away you might want to appoint a temporary or interim guardian. This could be a neighbor or close friend who will step in immediately until the permanent guardian can be reached and is available.
The guardian of the person might not be the person who will manage the children's money. I strongly recomend a different person as the trustee of the children's estate.
Trustee of the Children's Estate
The trustee manages the funds and property you have willed to your children. This can be a large sum if you have life insurance. This is the relative who is good with managing money, a very trusted friend, or a professional trustee. The trustee will disburse funds to the guardian for the care, feeding and education of your children.
By naming a separate trustee and guardian you provide a good check and balance. The nurturing substitute parent you select may not be the best money manager and the best money manager may not be the best nurturing parent. This provides balance and protects the guardian from being questioned as to what happened to the money.
If you are divorced: It is even more important that you name a trustee. If you don't, your ex spouse will be in charge of the children's estate. Probably not what you would prefer.
A Children's Trust
Your will should provide for a trust for the children. Besides naming a trustee, you can designate an age when your children will receive the disbursement. Remember there may be a large sum of money if you have life insurance. Most parents I meet don't want the funds disbursed at age 18, which it will be unless you make other provisions. Some parents designate age 25, some 35 with provisions for partial disbursements at certain ages. The money can be spent on education, and other expenses for the children. Your trustee should have a great deal of discretion but has the power to say no, just as you do.
Get a Will Now
Hopefully I have given you enough reason to get a will. You really should work with a lawyer to make sure your will accomplishes what you intend and that it is effective. I would be happy to discuss options with you.
If you have life insurance, and you should, your children will have an estate.
Here are the provisions you should have in your will.
Guardian of a minor child
A guardian is the person you designate to take care of your children if both parents are dead. If a parent dies the other parent automatically is the guardian. Even if the parents are divorced the children would go with the other parent unless a court has found something seriously wrong with that parent. While you can state your preference in your will, the other parent has precedence.
The designated guardian should be someone you feel will raise your children with the same values you would. Some parents make a mutual pact with another family to serve as guardians for their children. If you don't have a will, the state will make a determination. You don't want to risk having your children with Child Protective Services until a guardian is selected.
If your chosen guardian lives far away you might want to appoint a temporary or interim guardian. This could be a neighbor or close friend who will step in immediately until the permanent guardian can be reached and is available.
The guardian of the person might not be the person who will manage the children's money. I strongly recomend a different person as the trustee of the children's estate.
Trustee of the Children's Estate
The trustee manages the funds and property you have willed to your children. This can be a large sum if you have life insurance. This is the relative who is good with managing money, a very trusted friend, or a professional trustee. The trustee will disburse funds to the guardian for the care, feeding and education of your children.
By naming a separate trustee and guardian you provide a good check and balance. The nurturing substitute parent you select may not be the best money manager and the best money manager may not be the best nurturing parent. This provides balance and protects the guardian from being questioned as to what happened to the money.
If you are divorced: It is even more important that you name a trustee. If you don't, your ex spouse will be in charge of the children's estate. Probably not what you would prefer.
A Children's Trust
Your will should provide for a trust for the children. Besides naming a trustee, you can designate an age when your children will receive the disbursement. Remember there may be a large sum of money if you have life insurance. Most parents I meet don't want the funds disbursed at age 18, which it will be unless you make other provisions. Some parents designate age 25, some 35 with provisions for partial disbursements at certain ages. The money can be spent on education, and other expenses for the children. Your trustee should have a great deal of discretion but has the power to say no, just as you do.
Get a Will Now
Hopefully I have given you enough reason to get a will. You really should work with a lawyer to make sure your will accomplishes what you intend and that it is effective. I would be happy to discuss options with you.
Thursday, December 3, 2009
What is Estate Planning?
In my family law practice I advise my clients to change their will. I find that many of them do not have a will. I have decided to expand my practice to include Estate Planning.
Estate planning is not financial planning but should be a part of any financial plan. Estate planning is more about "End of Life Issues". Not what most people want to think about right? A basic estate plan should include, at the very least: A will, a Health Care Directive, a Power of Attorney for Health Care and a Durable Springing Power of Attorney. You may also want a Revocable Trust, minors trust, and trusts used to reduce inheritance taxes.
I will discuss the more complex plans later. Here is an explanation of the basic:
Last Will and Testament
A will allows you to direct what will happen to your property upon your demise. Most important function is to name a Personal Representative. This person will be charged with carrying out your wishes. If you have minor children you will want to name a Guardian and a Trustee for your children. The Guardian will take care of your children physically and a Trustee takes care of the children's money or property. I usually recommend that this be two different people. You will also want to name alternates.
Contrary to popular opinion, a will does not avoid probate. Your will means you have control of the process rather than relying on state law to disburse your assets. A will is a thoughtful thing to have for the sake of your loved ones.
Health Care Directive
Also called a "living will", this directive makes your wishes known regarding the extent of life support you desire. A very personal decision, it makes it clear to your relative and doctors what your wishes are.
Power of Attorney for Healthcare
This directive names the individual you would like to make decisions about your care when you are not able. It is important to discuss this sensitive topic with your chosen representative so he/she can make your wishes known.
Durable Springing Power of Attorney
This Power of Attorney allows someone to handle your financial affairs when you are not able. Durable means it remains in effect though you are incapacitated and Springing means it does not go into effect until your are deemed by your physician to be incapacitated. You will also want to add a HIPPA release so health care providers can release information.
These are the basic minimum documents you should have for your estate plan. Yes, you can find them on line but, of course, I recommend you talk to an attorney. State laws differ and you want to make sure your documents comply with your state's laws. Sometimes one word gives a document a different meaning. If you make a mistake, it can't be corrected when your gone. You may be surprised that it isn't as expensive as you may think.
I am always available for a free consultation. (Provided you live in Washington State)
Estate planning is not financial planning but should be a part of any financial plan. Estate planning is more about "End of Life Issues". Not what most people want to think about right? A basic estate plan should include, at the very least: A will, a Health Care Directive, a Power of Attorney for Health Care and a Durable Springing Power of Attorney. You may also want a Revocable Trust, minors trust, and trusts used to reduce inheritance taxes.
I will discuss the more complex plans later. Here is an explanation of the basic:
Last Will and Testament
A will allows you to direct what will happen to your property upon your demise. Most important function is to name a Personal Representative. This person will be charged with carrying out your wishes. If you have minor children you will want to name a Guardian and a Trustee for your children. The Guardian will take care of your children physically and a Trustee takes care of the children's money or property. I usually recommend that this be two different people. You will also want to name alternates.
Contrary to popular opinion, a will does not avoid probate. Your will means you have control of the process rather than relying on state law to disburse your assets. A will is a thoughtful thing to have for the sake of your loved ones.
Health Care Directive
Also called a "living will", this directive makes your wishes known regarding the extent of life support you desire. A very personal decision, it makes it clear to your relative and doctors what your wishes are.
Power of Attorney for Healthcare
This directive names the individual you would like to make decisions about your care when you are not able. It is important to discuss this sensitive topic with your chosen representative so he/she can make your wishes known.
Durable Springing Power of Attorney
This Power of Attorney allows someone to handle your financial affairs when you are not able. Durable means it remains in effect though you are incapacitated and Springing means it does not go into effect until your are deemed by your physician to be incapacitated. You will also want to add a HIPPA release so health care providers can release information.
These are the basic minimum documents you should have for your estate plan. Yes, you can find them on line but, of course, I recommend you talk to an attorney. State laws differ and you want to make sure your documents comply with your state's laws. Sometimes one word gives a document a different meaning. If you make a mistake, it can't be corrected when your gone. You may be surprised that it isn't as expensive as you may think.
I am always available for a free consultation. (Provided you live in Washington State)
Wednesday, November 18, 2009
Spending Money from a Defined Contribution Plan without the 10% penalty
Thanks to John James, www.specialsolutions.org
Special Solutions was founded by John James to assist families with special needs family members as they seek to provide for the future. As a Licensed Advocate for Protected Tomorrows®, John is uniquely prepared to guide families in developing a life plan for the family member.
Normally, distributions made before the participant attains age 59-1/2 are called “early distributions,” and are subject to a 10% penalty tax. The tax does not apply to early distributions upon death, disability, annuity payments for the life expectancy of the individual, or distributions made to an ex-spouse by a QDRO.
The tax Reg (72)(t)(2)(C) states that when you take money out of a qualified plan in accordance with a written divorce instrument (a QDRO), the recipient can spend any or all of it without paying the 10% penalty.
Let’s take a look at what happens when the ex-spouse receives the 401(k) asset. There are some specific rules to be aware of. Here’s an example.
In other words, if money is transferred from a qualified plan to an IRA, the check is sent directly from the qualified plan to the IRA. In a rollover, the funds are paid to the person who then remits the money to an IRA. A payment to the person, whether or not there is a rollover, is subject to the 20% withholding. Only a direct transfer avoids the withholding tax.
This is a great planning tool when clients have a need for cash and there is no other way to get it.
Special Solutions was founded by John James to assist families with special needs family members as they seek to provide for the future. As a Licensed Advocate for Protected Tomorrows®, John is uniquely prepared to guide families in developing a life plan for the family member.
Normally, distributions made before the participant attains age 59-1/2 are called “early distributions,” and are subject to a 10% penalty tax. The tax does not apply to early distributions upon death, disability, annuity payments for the life expectancy of the individual, or distributions made to an ex-spouse by a QDRO.The tax Reg (72)(t)(2)(C) states that when you take money out of a qualified plan in accordance with a written divorce instrument (a QDRO), the recipient can spend any or all of it without paying the 10% penalty.
Let’s take a look at what happens when the ex-spouse receives the 401(k) asset. There are some specific rules to be aware of. Here’s an example.
Sarah was married to an airline pilot who was nearing retirement. They were both age 55. There was $640,000 in his 401(k) and the retirement plan was prepared to transfer $320,000 to her IRA.
She could transfer the money to an IRA and pay no taxes on this amount until she withdraws funds from the IRA. But Sarah’s attorney’s fees were $60,000 and she needed another $20,000 to fix her roof. She said, “I need $80,000.” Because the 401(k) withholds 20% to apply toward taxes on a withdrawal, Sarah asked for $100,000. After the 20% withholding, she had $80,000 in cash and $220,000 to transfer to her IRA. She was able to spend the $80,000 without incurring a 10% penalty on the $100,000, which saved her $10,000 in penalties.
After the money from a pension plan goes into an IRA, which is not considered a qualified plan, Sarah is held to the early withdrawal rule. If she says, “Oh I forgot, I need another $5,000 to buy a car,” it is too late. She will have to pay the 10% penalty and the taxes on that money.
It is important to understand the difference between rolling over money from a qualified plan and transferring money from a qualified plan. The Unemployment Compensation Amendment Act (UCA), which took effect in January 1993, stated that any monies taken out of a qualified plan or tax-sheltered annuity would be subject to 20% withholding. This rule does not apply to IRAs or SEPs.
In other words, if money is transferred from a qualified plan to an IRA, the check is sent directly from the qualified plan to the IRA. In a rollover, the funds are paid to the person who then remits the money to an IRA. A payment to the person, whether or not there is a rollover, is subject to the 20% withholding. Only a direct transfer avoids the withholding tax.
This is a great planning tool when clients have a need for cash and there is no other way to get it.
Tuesday, November 17, 2009
10 Simple Communication Strategies for Divorced Parents
10 Simple Communication Strategies for Divorced Parents
Courtesy of Rosalind Sedacca. Her site provides good information for divorcing parents. http://www.childcentereddivorce.com.
by Cindy Harari, Esq.
Cindy Harari, Esq. is my guest contributor this week. She offers valuable information about communicating with your ex that is effective and promotes healthy parenting relationships. My thanks for Cindy for her excellent advice. Rosalind Sedacca
One of many challenges faced by divorced parents is the dilemma of communicating with their child's other parent. Although the parents have decided to divorce and end their "personal" relationship, when children are involved, the dissolution of a marriage mirrors the end of a business relationship where the business partners (the parents) have produced a product or asset (the children) that remains after the termination of the business.
Even though the parents no longer wish to continue to "work together," they share the desire for their children (the priceless marital asset) to grow and thrive. Among other things, the success of the children requires divorced parents to communicate with each other about child-focused issues. So how do divorced parents communicate effectively about their children when they are angry or upset or would simply rather not speak with their child's other parent ever again? Read on...
1. Whenever possible, communicate in writing. Writing gives you the opportunity to clarify your thoughts and express yourself clearly. Also, in the event of a misunderstanding, everyone can go back and look at what is written. E-mails and faxes have the advantage of having a date and time embedded as well.
2. Stick to child-focused issues and keep your communication informative, not emotional.
3. Keep your communication clear. Use bullet points or numbers rather than paragraphs.
4. If an item requires a response, indicate when the response is necessary. Also state what action will be taken in the event the other parent does not respond. For example: Our son's class trip is on (date) and the cost is ($X). The permission slip is due on (date). Please let me know by (date) if this is OK with you. If I don't hear from you, I will sign the permission slip and you and I will split the cost.
5. Do not use your communication as an opportunity to re-hash your feelings about the subjects you are writing about. Remember - this is business communication about your children.
6. Divide your writing into sections such as "old business," "new business" and "FYI."
7. Respond to communication from your child's other parent as you would like to have them respond to you. Be prompt and businesslike.
8. Use e-mail (and all written communication) courteously. Do not write entirely in capital letters. Do not use boldface type. Do not use extremely large type. Do not use exclamation points. Stay away from sarcasm. No name-calling or bad language at any time.
9. Take the initiative so neither parent becomes the "communication liaison." Children's schools, day care providers, extracurricular activity providers, etc. should have contact information for both parents. Each parent should receive notices from these sources. If that is not happening, the parent who is not receiving the information can provide their contact information and get on the distribution list.
10. Look into online programs such as OurFamilyWizard and ShareKids for calendaring and communication. These programs are designed especially for divorced parents.
There is a time and a place for your emotional release regarding your divorce, but, at the same time, there is a need to conduct the business of raising your children with someone you would probably rather not talk to. So how do you find the strength to "take the high road" time after time and communicate calmly and effectively with your child's other parent?
Always remember that your child's wellbeing depends on what you do and how you do it. It takes work to compartmentalize your emotions and put the needs of your children first, but you can do it. You are not alone - there are many resources available for to help you grow through the divorce. Successful communication strategies are a great addition to your post-divorce parenting toolkit.
********************************************************
Cindy Harari, Esq. is an attorney, trained parenting coordinator, mediator, and arbitrator. Her professional training combined with years of practical experience gives Ms. Harari a unique perspective and distinctive insight regarding issues of divorce and parenting. For additional information, please visit www.solutionsnottalk.com. © 2008. Cindy Harari. All Rights Reserved.
Rosalind Sedacca, CCT is a relationship seminar facilitator and author of the new ebook, How Do I Tell the Kids ... about the Divorce? A Create-a-Storybook Guide to Preparing Your Children -- with Love! The book provides fill-in-the-blank templates for customizing a personal family storybook that guides children through this difficult transition with optimum results. For more information about the book, Rosalind's free articles and free ezine visit http://www.childcentereddivorce.com.
© Rosalind Sedacca 2008. All rights reserved.
Wednesday, April 29, 2009
How to Get A Divorce Without Going Broke
This is very good information, especially for people in a complex divorce. You and your attorney can work as a team to keep your costs down. Ask what you can do to reduce costs. For example: You can provide copies when there are extensive records so that you don't have to pay for the attorney's staff to make copies and pay for the overhead costs for copies. If you can obtain records yourself rather than the attorney having to obtain through formal legal process you can also reduce costs. Wherever you can help us save time, you can save money. Be a partner with your attorney.
April 29, 2009 /24-7PressRelease/ -- How to Get A Divorce Without Going Broke
Article provided by Schwartz Law Firm. Please visit our Web site at http://www.schwartzlawfirmpc.com.
Divorce can be expensive. The combination of divided assets, increased individual living expenses and decreased collective income often leaves everyone involved feeling financially drained. It is possible to obtain a divorce and protect your assets without going broke.
Protecting Your Financial Interests Between The Time You File for Divorce and The Time The Divorce Is Finalized
When preparing for a divorce, many people face the same questions:
How am I going to pay my bills?
Can I stay in the house pending the divorce?
Are we going to have to sell or refinance our home?
After we decide to separate, when can I use the joint bank account?
What can I do if my spouse takes money out of our shared accounts?
An experienced family law attorney can take immediate action to protect your interests and answer your questions. An attorney can file a financial restraining order to prevent the dissipation of your shared assets and file a motion to maintain the status quo to ensure that bill payment arrangements do not change. If you want to stay in the home, an attorney can file a motion for the exclusive use of the marital home. When appropriate, an attorney can file for temporary child and spousal support and request immediate payment of attorney fees to allow you to pursue (or defend) a divorce action.
From a legal standpoint, these are the essential first steps, which will help you to make it through the process of filing for divorce. Divorce is a document intensive and fact specific process. You can reduce attorney fees by providing documents to your attorney and/or helping to prepare various financial charts, budgets, etc. Your role in the process should be active, not passive.
Preparing For The Initial Visit with Your Attorney
Before you ever meet with an attorney, take time to prepare relevant information regarding your assets, debts and ongoing financial obligations. Your attorney will need a number of documents before he or she can take action, but by collecting this information in advance you can reduce the time and expense of divorce.
Among other things, you should bring current utility bills, documents relating to your mortgage, tax records, bank statements, vehicle titles, retirement documents and investment records. This documentation will allow your attorney to take immediate action to protect your interests and develop a broad outlook regarding the fair division of marital assets.
Call your attorney's office to ask what specific documents they require and if they have any forms for you to complete prior to the meeting.
Keeping Costs Down During Litigation
Divorce varies immensely from one family to the next. In some cases, separating spouses can barely stand to share a room; in others, the divorce is amicable and separating spouses can work together to reach a fair resolution. Ultimately, the better you are able to work with your spouse throughout the divorce, the less costly the divorce is likely to be.
The more information you can provide to your attorney, the less you will pay in copy costs and attorney time. The better organized the information, the less time your attorney will spend reviewing the documents. For example, most attorneys use an asset-liability chart to assist with mediation and trial. The chart is used to show a mediator (or judge) the marital estate "at a glance." Your attorney should give this chart to you to complete and attach the supporting documentation. If you dump a stack of documents on an attorney who will then have to weed through numerous accounts and statements, your billable hours will increase accordingly.
Other ways to reduce costs are to request your financial records directly from your bank or other financial institution, employer, school, or medical doctor. This will save you subpoena costs and the time your attorney will spend to prepare them. Sometimes, however, an attorney will still need to subpoena documents. But these are some ways to help cut costs.
Whining Costs Money
You should be able to communicate freely with your attorney. But if you are calling every day to report on the sins of your recalcitrant spouse, you will be unnecessarily racking up your attorney bill. The same holds true for forwarding every email exchange between you and your spouse. While your attorney will be empathetic to your emotional, as well as your legal needs during a divorce proceeding, if you really need to simply vent or a shoulder to cry on, it's much less expensive to call a friend, counselor or priest.
Conclusion
While cutting costs is a legitimate concern in any case, it is most important that you select an attorney with whom you are comfortable and whom you trust. Most attorneys want to help their clients and are genuinely interested in saving them money. But ultimately we must do what is in our client's best interests, and sometimes this involves spending additional funds to conduct more extensive discovery, take depositions, or hire financial experts to value a marital home, business, or other assets. It is possible to pursue or defend a divorce action without going broke if you have an attorney who is sensitive to these issues.
April 29, 2009 /24-7PressRelease/ -- How to Get A Divorce Without Going Broke
Article provided by Schwartz Law Firm. Please visit our Web site at http://www.schwartzlawfirmpc.com.
Divorce can be expensive. The combination of divided assets, increased individual living expenses and decreased collective income often leaves everyone involved feeling financially drained. It is possible to obtain a divorce and protect your assets without going broke.
Protecting Your Financial Interests Between The Time You File for Divorce and The Time The Divorce Is Finalized
When preparing for a divorce, many people face the same questions:
How am I going to pay my bills?
Can I stay in the house pending the divorce?
Are we going to have to sell or refinance our home?
After we decide to separate, when can I use the joint bank account?
What can I do if my spouse takes money out of our shared accounts?
An experienced family law attorney can take immediate action to protect your interests and answer your questions. An attorney can file a financial restraining order to prevent the dissipation of your shared assets and file a motion to maintain the status quo to ensure that bill payment arrangements do not change. If you want to stay in the home, an attorney can file a motion for the exclusive use of the marital home. When appropriate, an attorney can file for temporary child and spousal support and request immediate payment of attorney fees to allow you to pursue (or defend) a divorce action.
From a legal standpoint, these are the essential first steps, which will help you to make it through the process of filing for divorce. Divorce is a document intensive and fact specific process. You can reduce attorney fees by providing documents to your attorney and/or helping to prepare various financial charts, budgets, etc. Your role in the process should be active, not passive.
Preparing For The Initial Visit with Your Attorney
Before you ever meet with an attorney, take time to prepare relevant information regarding your assets, debts and ongoing financial obligations. Your attorney will need a number of documents before he or she can take action, but by collecting this information in advance you can reduce the time and expense of divorce.
Among other things, you should bring current utility bills, documents relating to your mortgage, tax records, bank statements, vehicle titles, retirement documents and investment records. This documentation will allow your attorney to take immediate action to protect your interests and develop a broad outlook regarding the fair division of marital assets.
Call your attorney's office to ask what specific documents they require and if they have any forms for you to complete prior to the meeting.
Keeping Costs Down During Litigation
Divorce varies immensely from one family to the next. In some cases, separating spouses can barely stand to share a room; in others, the divorce is amicable and separating spouses can work together to reach a fair resolution. Ultimately, the better you are able to work with your spouse throughout the divorce, the less costly the divorce is likely to be.
The more information you can provide to your attorney, the less you will pay in copy costs and attorney time. The better organized the information, the less time your attorney will spend reviewing the documents. For example, most attorneys use an asset-liability chart to assist with mediation and trial. The chart is used to show a mediator (or judge) the marital estate "at a glance." Your attorney should give this chart to you to complete and attach the supporting documentation. If you dump a stack of documents on an attorney who will then have to weed through numerous accounts and statements, your billable hours will increase accordingly.
Other ways to reduce costs are to request your financial records directly from your bank or other financial institution, employer, school, or medical doctor. This will save you subpoena costs and the time your attorney will spend to prepare them. Sometimes, however, an attorney will still need to subpoena documents. But these are some ways to help cut costs.
Whining Costs Money
You should be able to communicate freely with your attorney. But if you are calling every day to report on the sins of your recalcitrant spouse, you will be unnecessarily racking up your attorney bill. The same holds true for forwarding every email exchange between you and your spouse. While your attorney will be empathetic to your emotional, as well as your legal needs during a divorce proceeding, if you really need to simply vent or a shoulder to cry on, it's much less expensive to call a friend, counselor or priest.
Conclusion
While cutting costs is a legitimate concern in any case, it is most important that you select an attorney with whom you are comfortable and whom you trust. Most attorneys want to help their clients and are genuinely interested in saving them money. But ultimately we must do what is in our client's best interests, and sometimes this involves spending additional funds to conduct more extensive discovery, take depositions, or hire financial experts to value a marital home, business, or other assets. It is possible to pursue or defend a divorce action without going broke if you have an attorney who is sensitive to these issues.
Thursday, April 23, 2009
10 Things Not To Do In Your Divorce Case
I continue to find valuable information on other people's blogs. This one is especially relevant. Read and heed.
Divorce is not easy. There are many pitfalls and traps awaiting parties that have not educated themselves about the process. People often make bad decisions under stress, or without the guidance of an experienced lawyer. Don’t be one of them. Divorce law isn’t rocket science, but it isn’t always intuitive. Avoid the following 10 divorce pitfalls to get a better result.
During your divorce, you should NOT:
1. Lie to your lawyer: We are here to help you. Your communication with us is privileged, meaning we can’t tell others about it, except in certain child abuse scenarios. The more we know, the more we can help. We need to know everything, the embarrassing, the ugly, and the secret. If you have a drug, alcohol, or gambling problem, tell us. You have two options: (1) Disclose and likely hear from your lawyer that your secret or problem is irrelevant to the court process, or (2) Fail to disclose and have your case hurt at trial because the other lawyer knows facts you haven’t told your lawyer.
2. Lie to the court: If you have a trial, the result is directly affected by your credibility. Judges are generally experts at determining who is telling the truth, and who is lying. Not only is lying to the court a crime, but your lawyer may have a duty to stop the proceeding and tell the court if he or she knows you are misrepresenting facts! If you have areas of your case that are sensitive, work with your lawyer on what you are going to say, but don’t misrepresent.
3. Involve the kids in the process: If your case involves a custody or parenting time dispute, nothing will draw the wrath of the court faster than involving your kids in the dispute. Don’t talk to them about the case. Don’t use them as pawns in the battle against your spouse. Don’t use them as your therapist, or treat them as your peers. Don’t put your spouse down in front of the kids. You are not only harming your case, you are harming your children.
4. Hide or fail to produce documents: You have an absolute right to see your spouse’s financial documents. Your spouse has an absolute right to see your financial documents. I have seen many cases that could have been simple turn complex and expensive when someone decides to not voluntarily produce records. The court can force you to produce records, and order that you pay your spouse’s lawyer fees incurred in getting the records. Good clients and good lawyers produce documents quickly and voluntarily. I had a case where we asked for some email records from the other side. They did not produce them, and when we filed a motion to compel their production, they tried to tell the court that they had been destroyed. The stunt seriously impacted the opposing lawyer’s credibility with the court.
5. Refuse to cooperate with a court appointed expert: In divorce and custody cases, experts called “custody evaluators” are routinely appointed to gather information about a family and make a recommendation regarding an appropriate parenting plan. If one is appointed in your case, cooperate. Be on time for appointments. Treat the expert with appropriate respect. Ignoring the requests of the evaluator can seriously harm your position and credibility with the court. An evaluator will likely make negative assumptions about you if you cannot comply with a court’s order to cooperate.
6. Settle without analyzing your case: Divorce can be unpleasant and emotionally painful. One reaction is to try to get it over quickly. Do not give into the urge to be done with the case before you have a full understanding of the assets and what a fair distribution looks like. You don’t want to be in a position where you are contemplating settlement and your spouse knows more about the assets than you. Prepare and go over a proposed distribution of assets and liabilities with your lawyer. Make sure you know the nature and extent of the assets, and get additional discovery if you don’t. Do not settle prematurely, before you know what is fair.
7. Fail to try to resolve the case outside of court: Don’t settle early without analysis, but also don’t fail to try to settle. Good lawyers and reasonable people settle most divorce cases without a trial. Many clients benefit from mediation, either through the county courthouse or through a private mediator. Our experience has been that many very difficult settle in mediation with the guidance of a trained expert mediator. You should always consult with your lawyer during the process to make sure you are getting a fair result. Settling also means you choose the outcome rather than have a judge impose an outcome on you. Parties that settle are generally happier long term, and have less ongoing conflict. Even if the other side is unreasonable, you should still make an offer to create a record of your position.
8. Take out your stress in unhealthy ways: This is the wrong time to up the drinking or other unhealthy behavior. Expect stress from the conflict and plan for it. Take out your stress in healthy ways, like at the gym, sports, or in talking to friends or a counselor. Don’t take it out on your children, or your body through unhealthy behaviors.
9. Be economically irrational in negotiations: At some point in every case it costs more to continue arguing than what is at stake. Approach your case with a business like mind. Are you really winning if you spend $1000 on lawyers to argue over a $50 lamp? Some (bad) lawyers insist on arguing about every point, without regard to cost. Every issue is a new battle front. A request to resolve one issue results in two more contested issues. In our opinion, these lawyers don’t serve their clients well. Pick your battles. If it costs $1000 to argue over something you can replace at Target for $20, buy a new one, and focus on what is really important.
10. Be your own lawyer if your case is contested and your spouse is represented: Many judges dislike unrepresented parties. Even experienced divorce lawyers hire experienced divorce lawyers for an objective opinion. Many unrepresented people who think they have a great case find out otherwise after a judge rules against them because they can’t tell the judge everything they want to because of the rules of evidence. If you disagree over property or custody, and your spouse has a lawyer, seek representation.
Source: The Oregon Divorce Blog.
SOURCE FOR POST: Oklahoma Family Law Blog
Monday, April 20, 2009
Divorce Your Spouse - Not your Children's Grandparents
I have been following Rosalind Sedacca's posting for some time and find that she has good advice for divorcing parents. As a grandmother I very much appreciate this one. I am often asked about "grandparent's rights" -- Sadly the United States Supreme Court has ruled that there is no such thing. All rights flow through the parents.
By Rosalind Sedacca, CCT
When parents divorce, each member of the family is affected in very unique and personal ways. The age of the child, their gender, their relationship with their siblings, how close they were to each parent and a myriad of other factors all influence the physical, mental, emotional and spiritual repercussions in the months and years ahead.
There re many others whose lives are forever changed by the complexities of divorce. Frequently overlooked and often tragically scarred are the grandparents. Custody issues are hard enough for parents to battle out. Few take into account the consequences for grandparents whose unconditional love for their grandchildren is such a healthy and rewarding part of normal family life.
Once again this is a time for clear thinking on behalf of your children. Should they be deprived of the warmth, intimacy and loving support of grandparents just because you are angry at your former spouse? When you take out your marital frustrations on your in-laws -- your children's grandparents -- it's your children who will suffer.
Grandparents have a special place in the lives and hearts of their grandchildren. Usually they are the ones to spoil the kids, indulge them, take them off your hands when no one else can come to the rescue. Of course, not all grandparents fit the idyllic stereotype, nor are all grandparents emotionally close to their grandchildren. But if your in-laws have a healthy relationship with your children, think long and hard before severing that chord.
A child-centered divorce honors and respects all the adults and children that play a part in your children's lives. One of the primary factors in easing your children through the challenges of separation or divorce is maintaining their lives as closely as possible to their pre-divorce routines. The less disruption in their schedules, day-to-day and month-to-month activities, the easier will be their transition through divorce and beyond.
Spending time with grandma and grandpa, whether every Sunday, once a month or once a year over Christmas or summer vacation, is a routine that means life is going on with some semblance of safety, security and ease. Consider the consequences before interrupting or sabotaging that relationship. Don't deny your children the support system they have come to love and depend upon out of spite, resentment or any other motive not of relevance to your children.
Divorce is tough all around. It behooves you to do the right thing every step of the way. Seek out professional guidance if you need help regarding decisions affecting your children. Let those decisions be motivated by your love for your children - not by your resentment against those who love your children, as well.
* * *
Rosalind Sedacca, CCT is a relationship seminar facilitator and author of the new ebook, How Do I Tell the Kids ... about the Divorce? A Create-a-Storybook Guide(TM) to Preparing Your Children -- with Love! For free articles, her blog, valuable resources on child-centered divorce or to subscribe to her free ezine, go to: www.childcentereddivorce.com
By Rosalind Sedacca, CCT
When parents divorce, each member of the family is affected in very unique and personal ways. The age of the child, their gender, their relationship with their siblings, how close they were to each parent and a myriad of other factors all influence the physical, mental, emotional and spiritual repercussions in the months and years ahead.
There re many others whose lives are forever changed by the complexities of divorce. Frequently overlooked and often tragically scarred are the grandparents. Custody issues are hard enough for parents to battle out. Few take into account the consequences for grandparents whose unconditional love for their grandchildren is such a healthy and rewarding part of normal family life.
Once again this is a time for clear thinking on behalf of your children. Should they be deprived of the warmth, intimacy and loving support of grandparents just because you are angry at your former spouse? When you take out your marital frustrations on your in-laws -- your children's grandparents -- it's your children who will suffer.
Grandparents have a special place in the lives and hearts of their grandchildren. Usually they are the ones to spoil the kids, indulge them, take them off your hands when no one else can come to the rescue. Of course, not all grandparents fit the idyllic stereotype, nor are all grandparents emotionally close to their grandchildren. But if your in-laws have a healthy relationship with your children, think long and hard before severing that chord.
A child-centered divorce honors and respects all the adults and children that play a part in your children's lives. One of the primary factors in easing your children through the challenges of separation or divorce is maintaining their lives as closely as possible to their pre-divorce routines. The less disruption in their schedules, day-to-day and month-to-month activities, the easier will be their transition through divorce and beyond.
Spending time with grandma and grandpa, whether every Sunday, once a month or once a year over Christmas or summer vacation, is a routine that means life is going on with some semblance of safety, security and ease. Consider the consequences before interrupting or sabotaging that relationship. Don't deny your children the support system they have come to love and depend upon out of spite, resentment or any other motive not of relevance to your children.
Divorce is tough all around. It behooves you to do the right thing every step of the way. Seek out professional guidance if you need help regarding decisions affecting your children. Let those decisions be motivated by your love for your children - not by your resentment against those who love your children, as well.
* * *
Rosalind Sedacca, CCT is a relationship seminar facilitator and author of the new ebook, How Do I Tell the Kids ... about the Divorce? A Create-a-Storybook Guide(TM) to Preparing Your Children -- with Love! For free articles, her blog, valuable resources on child-centered divorce or to subscribe to her free ezine, go to: www.childcentereddivorce.com
Tuesday, April 14, 2009
Dissolve the Marriage, Save the Family
April 2009 Bar Bulletin
King County Bar Association
By Karin Quirk
My practice has evolved over time to representing parties who have decided they no longer want to be married but want to maintain a relationship with their ex-spouse. They have watched their friends go through bitter divorces and want to avoid the hostility generated by a “divorce war.”
I’m pleased that I have been able to work with a community of like-minded family law attorneys to offer an alternative. While not appropriate in all divorce cases, this alternative does offer clients an opportunity to build a new, if different, family.
A friend of mine, a wedding photographer, tells me one of the biggest challenges of his work comes with attempting to juggle the divorced parents of the bride or groom. Miss Manners columns advise on how to handle the invitations and where to seat the parents and their significant others. Similar horror stories abound for other significant family events such as bar/bat mitzvahs, college graduations and even piano recitals and soccer games.
These events are for the honoree and the marital status of the parents should not cause tension. Often this bitterness is the result of an acrimonious divorce. While divorce will continue to happen, many family law attorneys now work with their clients to create a new way to divorce without the lingering hostility.
A family therapist who works with divorcing couples explains the progression of the couple’s relationship. When they first married, they became husband and wife, and when they had children, they became mom and dad. Now that they are divorcing, they will no longer be husband and wife, but they will always be mom and dad. Recognizing the importance of this relationship, couples are searching for ways to terminate the marriage and yet preserve the future relationship as parents.
There are several models for non-adversarial divorce. Washington has a growing contingent of professionals practicing collaborative divorce. A new organization of Washington collaborative professionals held its first statewide conference last fall. King County Collaborative Law has spawned South Sound and South Snohomish County groups.
The professional members include family law attorneys, mental health professionals, financial specialists and mortgage professionals. There are many smaller practice groups meeting regularly to hone their skills and learn from each other. It is interesting when the marriage counselors meet with the divorce lawyers and learn to communicate with each other.
Collaborative law has specific protocols where the professionals form a team with the divorcing couples. Mental health professionals may act as coaches for the parties, helping them learn to communicate in a more productive manner, or a child specialist may help the couple develop a parenting schedule that makes sense for the children and the family’s needs.
There are other models for non-adversarial divorce. Several attorneys have left the courtroom to work with couples as mediators to help clients forge their own marital settlement agreements and parenting plans. Some attorneys pledge to work cooperatively with each other in a non-adversarial manner. There is growing demand for unbundled services from attorneys who can assist couples with a “kitchen table” divorce, with the parties working out their own issues and the attorneys acting as facilitators for the legal process.
I have been writing about non-adversarial divorce in a small local paper for a number of years. The paper has an online version and I have received calls from attorneys in several states and even the United Kingdom requesting permission to reprint the articles in their local publications. These attorneys are primarily seeking better ways of serving their clients, but are also looking at how this model affects their own lives. They are looking at reducing the stress caused by highly litigious cases.
While forming a new family relationship in the midst of a divorce is a desirable goal, it isn’t always possible. There will still be a need for traditional litigation and I applaud the difficult work undertaken by my litigator colleagues. For family law attorneys who are feeling burned out, I do suggest they investigate the possibilities offered by these emerging dissolution models.
I have a picture in my office as an example of a new family created after divorce. It is a picture of my own daughter’s wedding with her husband’s parents, her father and both of her moms. My grandson finds it perfectly normal and quite desirable to have three grandmothers.
Tuesday, April 7, 2009
Don't Forget to Update Your Will and Estate Plan After Divorce
I send my clients a letter with their final divorce papers. I always advise them to update their wills and estate plans. Most of them don't do it. I think I will start being more proactive because it is important. Here are a few things you might want to consider:
Who has power of attorney for health care?
Is it your former spouse? Do you want that?
Do you want to leave your estate to your former spouse?
The divorce invalidates that portion of your will. If you want your former spouse to be the recipient, you need to restate that after the divorce.
The divorce and a new will won't change beneficiaries on your insurance and retirement accounts
You must fill out new beneficiary forms. Don't think just making a will takes care of it.
Did you set up a trust account for your children? If you did, did you make the trust the beneficiary on your insurance?
Often clients don't want children to inherit large sums of money all at once when they are 18 and set up a trust to handle the money until they are older. The largest sum often is the insurance proceeds and if the children are the beneficiaries they will receive the lump sum when they are 18. You should name the children's trust as the beneficiary.
What documents should you have along with a will?
You should have
A will (Last Will and Testament)
Power of Attorney for Health Care
Health Care Directive
Durable Power of Attorney
Who has power of attorney for health care?
Is it your former spouse? Do you want that?
Do you want to leave your estate to your former spouse?
The divorce invalidates that portion of your will. If you want your former spouse to be the recipient, you need to restate that after the divorce.
The divorce and a new will won't change beneficiaries on your insurance and retirement accounts
You must fill out new beneficiary forms. Don't think just making a will takes care of it.
Did you set up a trust account for your children? If you did, did you make the trust the beneficiary on your insurance?
Often clients don't want children to inherit large sums of money all at once when they are 18 and set up a trust to handle the money until they are older. The largest sum often is the insurance proceeds and if the children are the beneficiaries they will receive the lump sum when they are 18. You should name the children's trust as the beneficiary.
What documents should you have along with a will?
You should have
A will (Last Will and Testament)
Power of Attorney for Health Care
Health Care Directive
Durable Power of Attorney
Tuesday, March 31, 2009
Children As Messengers And Spies During Your Divorce – Don't Go There!
This came into my in box this morning and I thought it would be of interest to divorced or divorcing parents. The book is available on Amazon.com. I haven't read it and don't know the author but I pass it along as good information.
When there is ongoing custody conflict, children should rarely be asked to relay messages to their other parent. Asking a child to carry messages is yet another lose-lose proposition. By asking your child to be a messenger you do nothing to improve your parental communication skills with the other parent. Furthermore, you place your child directly in the middle of an area already ripe for a communication meltdown. Even a seemingly simple and benevolent message can lead to chaos.
Here's an example that may sound familiar: "Tell your father that we have plans on Friday night so he can pick you up on Saturday at 10 a.m. instead of Friday at 6 p.m."
In a case like this, Mom may be pretending, or even genuinely believing, that she is doing a good deed by giving Dad advance notice and avoiding any confrontation between the two of them over this issue. Either way, she is WRONG!
Let's look at the potential pitfalls in this one simple scenario:
- The child forgets (or because of the desire to avoid conflict pretends to forget), and the result is that Dad shows up on Friday night and no one is home.
- The child tells Dad, as instructed by Mom, and Dad blows a fuse. The result is a bad transition time for father and child.
- Dad says, "When you go back to your Mother's, tell her that I will be there as scheduled," and the child forgets (or pretends to forget) to deliver the message to avoid any more conflict.
- The child feels apprehensive, doesn't want to hurt Dad's feelings, and is upset with Mom for "causing" this dilemma.
- Dad says, "Tell your Mom that you'd better be there on Friday night as planned or I'll (call the police, call my lawyer, file contempt proceedings...)." – You fill in the blank.
- It's Friday night, Mom wants the child to go to the planned event, and the child is apprehensive about going because of the situation; the child is expecting Dad to show up and "cause a scene." They leave before Dad's scheduled time just in case. The next morning there is a bad exchange between the parents in front of the child.
- When Dad arrives on Saturday the child may get the third degree about what plans were "so important." Dad bad-mouthing Mom then becomes more likely.
- Questions like what, where, when, why, what time, and who was there, may potentially consume the transition time between homes.
- What if Dad had special plans for Friday night that the child would have really enjoyed?
All of this headache and heartache can be avoided when parents act like grown-ups and do their own communicating. There is almost never a reason for your children to act as go-betweens. It can be avoided with a little effort and some creative maneuvering. When you allow yourself to use your children as messengers, you're really placing responsibility on them that belongs to you. Don't load your children down with your own burdens. Don't make life easier for yourself by making it more complicated for them.
If treating your children as messengers isn't bad enough, it is really inappropriate to use them as "spies". When children are told to report on the activities of the other parent, it places the children in a no-win situation. Even worse, using your children as spies has other negative consequences. It promotes lying and deceit. Encouraging spying promotes picking sides. It also creates loyalty conflicts for your children. As a result, children may clam up, become untruthful, or untrustworthy.
It can be difficult to break the habit of inappropriately questioning your children after they return from time spent with the other parent, but it must be done. A little child-focused thinking should get you there. Think about how it feels for your children to transition from one home to the other. When they return to you, they want to know you're happy to see them and that you're focused on them. Interrogation does not start your transition time off on a good note, and it makes children very uncomfortable whether they outwardly show it or not. Furthermore, if your children are worried that they'll have to "report" to you, transition time will be awkward for them. Instead of focusing on how your children have already spent their time, focus on how you’re going to spend your time with them.
Obviously, there are some common-sense exceptions. Real and legitimate safety or health issues fall into that category. But that's not what I'm talking about in this article, I'm talking about when you want to know whether Daddy's new girlfriend went to the zoo with them. Don't make a situation such as this even more complicated for your children. They'll tell you what they want to tell you, and they'll be a whole lot more likely to do so when you don't give them the third degree or send them to purposely spy.
Children are smarter than you think. Simple communication designed to surreptitiously interrogate the children is not going to work for long. They will try desperately to exercise their right to remain silent. The reason they will do this is because they know that anything they say can and will generally be used against them - in one way or another! Again, the key is to focus on the life you and your children live together and enjoy every moment of it.
This is just one article that is similar to the information you will find in my new book, "Stop Fighting Over the Kids: Resolving Day-to-Day Custody Conflict in Divorce Situations"
Available at Amazon.com
Wednesday, March 25, 2009
What Effects of Economy Are You Seeing?
I generally keep this post to issues important to divorcing couples such as financial, parenting and promoting respectful, cooperative divorce. Lately, however, the economy is topic one. Certainly the current economic downturn has a tremendous impact on divorcing couples but it impacts almost everyone in some way. Here are some completely random observations. These observations come from stories I am hearing from my clients, other lawyers in the community and my network of business entrepreneurs.
Divorce
I do not have any statistics but from what I am observing and hearing from my colleagues, people are holding off on getting divorced. I wouldn't put this in the category of good news because it is not a happy situation for these folks. In the last month I have had at least three couples postpone their divorce because they were experiencing financial problems and could not afford to live in separate households. I am concerned for children living in such a household and I feel sorry that the individuals can't move on with their lives.
Divorce among the affluent isn't any easier. Many of my high earner clients have seen bonuses and commissions greatly reduced. It is not unusual among these high earners to live on credit until the bonus comes in. Now without a bonus they are facing high credit card debt. That neighbor in the high priced house may not be doing as well as you see from the outside.
Other Random Effects
My colleagues who practice DUI defense tell me business is down. Are people drinking at home and not driving? That could be a good result. What I am told, however, is that drivers are going to court without representation and hoping for the best. Never a good idea. Not only is a defense lawyer important in court, a defense lawyer assists clients with Department of Licensing issues.
The wine wholesalers are still doing well. (Was that a segue or what?) Their orders from restaurants are way down but the orders from wine merchants are up. People are enjoying their wine at home.
I heard this morning that medical providers are doing a booming business because people are hurrying to get their health care issues taken care of before they lose their health insurance. Not exactly optimistic news and may lead to higher insurance premiums.
Who is doing well?
Ice cream! Traditionally vendors of premium ice cream do well in economic downturn because people can treat themselves to a luxury that doesn't break the budget.
Mental health counselors. This seems obvious, as long as people still have health insurance they are going to counselors to deal with stress issues. I'm guessing those folks delaying the divorce are seeing counselors also.
Massage Therapist
I hear that this is another form of self care people will indulge in to feel better.
Manicurists?
A mixed bag. Some women have had to cut down on weekly manicures but some have added them in the low price luxury/self care category. I wonder how business is for hair dressers? I won't use my own experience here!
Anyone else?
I would love to see comments from others of their observations. Then let's all focus on the positive and know better times are coming.
Divorce
I do not have any statistics but from what I am observing and hearing from my colleagues, people are holding off on getting divorced. I wouldn't put this in the category of good news because it is not a happy situation for these folks. In the last month I have had at least three couples postpone their divorce because they were experiencing financial problems and could not afford to live in separate households. I am concerned for children living in such a household and I feel sorry that the individuals can't move on with their lives.
Divorce among the affluent isn't any easier. Many of my high earner clients have seen bonuses and commissions greatly reduced. It is not unusual among these high earners to live on credit until the bonus comes in. Now without a bonus they are facing high credit card debt. That neighbor in the high priced house may not be doing as well as you see from the outside.
Other Random Effects
My colleagues who practice DUI defense tell me business is down. Are people drinking at home and not driving? That could be a good result. What I am told, however, is that drivers are going to court without representation and hoping for the best. Never a good idea. Not only is a defense lawyer important in court, a defense lawyer assists clients with Department of Licensing issues.
The wine wholesalers are still doing well. (Was that a segue or what?) Their orders from restaurants are way down but the orders from wine merchants are up. People are enjoying their wine at home.
I heard this morning that medical providers are doing a booming business because people are hurrying to get their health care issues taken care of before they lose their health insurance. Not exactly optimistic news and may lead to higher insurance premiums.
Who is doing well?
Ice cream! Traditionally vendors of premium ice cream do well in economic downturn because people can treat themselves to a luxury that doesn't break the budget.
Mental health counselors. This seems obvious, as long as people still have health insurance they are going to counselors to deal with stress issues. I'm guessing those folks delaying the divorce are seeing counselors also.
Massage Therapist
I hear that this is another form of self care people will indulge in to feel better.
Manicurists?
A mixed bag. Some women have had to cut down on weekly manicures but some have added them in the low price luxury/self care category. I wonder how business is for hair dressers? I won't use my own experience here!
Anyone else?
I would love to see comments from others of their observations. Then let's all focus on the positive and know better times are coming.
Monday, March 23, 2009
Divorce or Stay Together - a Difficult Challenge for Parents
By Rosalind Sedacca, CCT
I try to provide relevant information for divorcing couples. Rosalind Sedacca has been a previous contributor and this information is valuable for couples with children. Rosalind Sedacca, CCT is a relationship seminar facilitator and author of the new ebook, How Do I Tell the Kids ... about the Divorce? A Create-a-Storybook Guide to Preparing Your Children -- with Love!. For free articles, her blog, valuable resources on child-centered divorce or to subscribe to her free ezine, go to: www.childcentereddivorce.com.
This is a tough and controversial subject. There are no right or wrong answers, nor are there any simplistic black and white solutions. I am sharing my own perspective, based on my own life experiences. I welcome you to contribute your own perspective as long as you are respectful of the rights of others to see the world in a different light.
I am the author of a new book about parenting and divorce. I also grew up in a family that stayed together for the sake of the kids, so I have a good perspective on both sides of this topic. Obviously neither option is one any family would choose - they both create pain and hurt.
However, I am opting in on the side of divorce as preferable to years of living in a home where parents fight, disrespect one another and children grow up surrounded by sadness and anger. That's the world I grew up in and the scars are still with me today, many decades later. Dr. Phil often says, "I'd rather come from a dysfunctional family than be in one." I firmly believe he's right.
Staying in a marriage only for the kids is a physical choice that doesn't touch upon the emotional and psychological pain children endure when their parents are a couple in name only. There is no positive role model of how marriage can and should be lived. Happiness, harmony, collaboration, respect and joy are all absent when parents are emotionally divorced while still living together. Children feel it, are confused by it, often blame themselves, are usually guilt-ridden and experience little peace in childhood.
That's why I chose the other route when my marriage was failing. However, I intuitively understood what not to do in divorce. I consciously created what I call a child-centered divorce, co-parented with my former husband, shared custody and maintained a positive relationship with my ex for the decade to follow. Most gratifying for me is the satisfaction of my now adult son writing the introduction to my new book, acknowledging the merits of my philosophy and behavior.
Therapists, attorneys, mediators, educators and other professionals from around the U.S. and beyond have been endorsing the book and the value of my novel approach to this subject. Six therapists contribute their expertise to the book, as well. My purpose is to raise the consciousness of divorcing couples so they will stop, talk and create a caring plan of action before having that first crucial conversation with their children. I provide six essential messages every child needs to hear and understand when divorce or separation are pending. I also advise parents, for the sake of their kids, to choose to create a "child-centered divorce" and highlight all the short- and long-term advantages in the months, years and decades to come.
If parents have the maturity and determination to re-connect, get professional assistance and stay together in a renewed commitment to marriage, that would absolutely be ideal. The entire family will benefit and the healing will be a blessing. However, if children are being raised in a war zone or in the silence and apathy of sleep-walking through a dead marriage, divorce may open the door to a healthier, happier future for all concerned. But only - and this is the key point -- only if parents consciously work on creating a harmonious, collaborative child-centered divorce that puts the children's emotional and psychological needs first!
* * *
Rosalind Sedacca 2007. All rights reserved.
Sunday, March 22, 2009
Divore and Money -- another point of view
Rosemary Frank is a family law attorney in Florida. She has good information on her site: http://www.dollarsofdivorce.com/
Tell it to the Judge
Most of my divorce cases are cooperative and are not litigated but occasionally I take on a heavily litigated case. Usually these litigated cases serve as a reminder of why I am so passionate about trying to change the way people divorce. The contrast is striking between a litigated case and a collaborative case. This week I worked on two cases that provide great illustrations of that difference.
Case one had gone on for more that a year and was scheduled for trial March 9. A few days before trial we tried to resolve the matter through a mandatory settlement conference. These conferences are intense and emotionally draining but not nearly as much as trial can be. As is typical in these settlement conferences, the parties were in separate rooms with their respective attorneys as the mediator shuttled between rooms. The parties were wide apart and neither was willing to compromise. No settlement was reached and my opposing counsel took my client's deposition. Again my client endured four emotional hours during which irrelevant but potentially embarrassing questions came one after the other. These questions could never be asked at trial but an attorney has wide latitude during deposition. After the deposition I used my best negotiating skills to find resolution. Both parties remained intransigent. Somehow both parties believed they would prevail if they could just "tell it to the judge". So both attorneys prepared for trial.
Although trial date was March 9 we were on hold waiting for an available court. A divorce without children is lowest priority and we waited more than two weeks. Last Friday we received notice that trial would begin Monday morning on March 23. My client lives out of state and would have to find last minute plane tickets.
Both attorneys worked hard at coming to resolution. We know that trial would be very expensive and neither client would like the end result. We had been working at resolutions that would meet each of our clients priorities. Results of trial would "split the baby". We knew both parties were at risk of a property division that would not serve them well. So why would the parties continue to hold out for trial? They each believed that if they could just "tell it to the judge" the judge would realize how virtuous they each were and would find for them. My client had complaints about what her husband did for the last 20 years. Similarly her husband knew he would receive sympathy by relating his list of complaints. The truth is none of their complaints would even be heard by the judge.
Washington is a no fault, community property state. That means the bad acts of a party are not relevant. All the property in this case is community. A court would merely divide all property equally. My opposing counsel and I were working on an equitable division that would divide property in a way that made sense to the individual parties. She needed cash and he wanted to keep his business. We had that resolution well worked out and knew our clients would not do better at trial.
Late Friday we thought we had a good resolution and had agreement in principle. Where were we stuck? The wine glasses! She wanted them and he, who was still living in the house, claimed he did not know where they were. Stalemate. Does anyone believe the battle was really over the wine glasses? Years of anger and disappointment were wrapped up in those goblets. Both were still convinced they would get the sympathetic ear of the judge. Both attorneys knew these emotional issues would not be addressed at trial and were frustrated about preparing for trial when the relevant issues were relatively simple to resolve and the emotional issues were not relevant and the rules of evidence would prevent introduction of most testimony the clients wanted to present.
Sanity prevailed at 10 p.m. Friday as my esteemed opposing counsel and I worked out the last of the logistics by cell phone and e mail. Both attorneys are satisfied and neither client is. We saved our clients thousands of dollars and forged what we know is as equitable result as we could have in this situation. We gave our all only to end up with dissatisfied clients.
Case two also has gone on for over a year. However the delay has been at the clients' request. They have endured several traumatic events recently and needed to pause the divorce discussions. The clients had already crafted interim agreements with the help of their attorneys, financial planner and mental health coaches. Both husband and wife were content with the interim agreements and were not prejudiced by the delay.
Last week we had a "team meeting" with husband and wife, their attorneys and the financial planner. A lot has changed since our last meeting. The home value has plunged, the retirement accounts are significantly reduced, wife has lost her job and husband's job is at risk. Rather than expressing bitterness, both husband and wife expressed understanding and empathy. Both were concerned about the well being of the other in the future. They still want to dissolve the marriage but want to do so with dignity and respect. They have adult children and want to maintain a family relationship. They are my poster illustrations of the ideal collaborative case. This couple could easily have been in the same position as the litigious couple but they made a different choice early on in the divorce process. And that choice has made all the difference.
My mission is to change the way people divorce. I recruit others to help me spread the word that there is a different way. I hope these two stories provide incentive to choose a different way.
Case one had gone on for more that a year and was scheduled for trial March 9. A few days before trial we tried to resolve the matter through a mandatory settlement conference. These conferences are intense and emotionally draining but not nearly as much as trial can be. As is typical in these settlement conferences, the parties were in separate rooms with their respective attorneys as the mediator shuttled between rooms. The parties were wide apart and neither was willing to compromise. No settlement was reached and my opposing counsel took my client's deposition. Again my client endured four emotional hours during which irrelevant but potentially embarrassing questions came one after the other. These questions could never be asked at trial but an attorney has wide latitude during deposition. After the deposition I used my best negotiating skills to find resolution. Both parties remained intransigent. Somehow both parties believed they would prevail if they could just "tell it to the judge". So both attorneys prepared for trial.
Although trial date was March 9 we were on hold waiting for an available court. A divorce without children is lowest priority and we waited more than two weeks. Last Friday we received notice that trial would begin Monday morning on March 23. My client lives out of state and would have to find last minute plane tickets.
Both attorneys worked hard at coming to resolution. We know that trial would be very expensive and neither client would like the end result. We had been working at resolutions that would meet each of our clients priorities. Results of trial would "split the baby". We knew both parties were at risk of a property division that would not serve them well. So why would the parties continue to hold out for trial? They each believed that if they could just "tell it to the judge" the judge would realize how virtuous they each were and would find for them. My client had complaints about what her husband did for the last 20 years. Similarly her husband knew he would receive sympathy by relating his list of complaints. The truth is none of their complaints would even be heard by the judge.
Washington is a no fault, community property state. That means the bad acts of a party are not relevant. All the property in this case is community. A court would merely divide all property equally. My opposing counsel and I were working on an equitable division that would divide property in a way that made sense to the individual parties. She needed cash and he wanted to keep his business. We had that resolution well worked out and knew our clients would not do better at trial.
Late Friday we thought we had a good resolution and had agreement in principle. Where were we stuck? The wine glasses! She wanted them and he, who was still living in the house, claimed he did not know where they were. Stalemate. Does anyone believe the battle was really over the wine glasses? Years of anger and disappointment were wrapped up in those goblets. Both were still convinced they would get the sympathetic ear of the judge. Both attorneys knew these emotional issues would not be addressed at trial and were frustrated about preparing for trial when the relevant issues were relatively simple to resolve and the emotional issues were not relevant and the rules of evidence would prevent introduction of most testimony the clients wanted to present.
Sanity prevailed at 10 p.m. Friday as my esteemed opposing counsel and I worked out the last of the logistics by cell phone and e mail. Both attorneys are satisfied and neither client is. We saved our clients thousands of dollars and forged what we know is as equitable result as we could have in this situation. We gave our all only to end up with dissatisfied clients.
Case two also has gone on for over a year. However the delay has been at the clients' request. They have endured several traumatic events recently and needed to pause the divorce discussions. The clients had already crafted interim agreements with the help of their attorneys, financial planner and mental health coaches. Both husband and wife were content with the interim agreements and were not prejudiced by the delay.
Last week we had a "team meeting" with husband and wife, their attorneys and the financial planner. A lot has changed since our last meeting. The home value has plunged, the retirement accounts are significantly reduced, wife has lost her job and husband's job is at risk. Rather than expressing bitterness, both husband and wife expressed understanding and empathy. Both were concerned about the well being of the other in the future. They still want to dissolve the marriage but want to do so with dignity and respect. They have adult children and want to maintain a family relationship. They are my poster illustrations of the ideal collaborative case. This couple could easily have been in the same position as the litigious couple but they made a different choice early on in the divorce process. And that choice has made all the difference.
My mission is to change the way people divorce. I recruit others to help me spread the word that there is a different way. I hope these two stories provide incentive to choose a different way.
Monday, March 16, 2009
OPTIONS FOR SELLING A HOUSE WHEN YOU ARE DIVORCING
In my practice I work with a variety of specialists in finance and real estate. Their professional advise is useful for folks contemplating divorce. The following was written by Thomas Tribble, a real estate professional who works with couples to explore alternatives when selling a house as part of a divorce.
Options on Dealing with the House
By Thomas Tribble
www.optionhouserealestate.com
In better times, when a couple was contemplating a divorce, the main consideration about the house was who gets to keep it, or how are we going to divide the proceeds from the sale of the house? These days the discussion raises the questions of whether or not the house will even sell, will there be any proceeds from the sale, or who has to keep it and deal with trying to maintain it or sell it.
In spite of all the bleak perspective on the market that is being broadcast, houses can still be sold, especially if the owners are willing to do some untypical things to get it done.
The most common approach is to list the house with a realtor and wait for a pre-qualified buyer to come along and relieve the sellers of their responsibility. As long as there is no sense of urgency to sell, and as long as the house is priced to sell amidst the surrounding competition, this is can be a very acceptable approach. However if the sellers do not want to wait for several months to get a potential offer, and they are willing to consider some other options, they can move the process along much more quickly.
The options depend on some specific economic and personal considerations that, in combination, make the approach unique to each case and set of circumstances. Specifically the options revolve around whether or not there is equity in the house, and whether or not the owners are willing to accept terms that may require some time to get them that equity.
In order to determine whether or not there is equity, a comparison has to be made between what is owed on the house and at what price the house can be sold quickly. The first part is straight forward and simply a matter of looking at statements from the first mortgage, second mortgage, and any other lien holders. This will total up all that is owed against the house. The sale price needs to be determined from looking at comparable properties that have recently sold, from comparable properties that are currently for sale, and the amount of time that those properties were on the market before they sold, and how long the current listings have been on the market. In the real estate industry this is called a Comparative Market Analysis. The accuracy of that analysis is critical and needs to include the costs associated with selling. Obviously, the price that is determined will govern which direction the sellers will need to go to achieve their goals.
Whether or not there is equity in the house, one selling partner may want to issue a Quit Claim deed to the other just relieve them self of any concern about the house. While this does not relieve the Quit Claiming partner from their obligation under any mortgage notes they have signed, it does allow the other partner to proceed with the house as they see fit. While I am not an attorney, nor do I play one on TV, the ramifications of issuing a Quit Claim Deed should be discussed fully with your attorney before you do this.
When there is equity in the house, the sellers must determine how much of that equity they can relinquish to sell the house quickly, if that is their goal, which is the next important decision: How quickly does the house need to be sold?
When the house needs to be sold quickly, often a real estate wholesaler is the fastest way to sell. The real estate wholesaler will purchase the house and engineer a deal that is tailored to the circumstances of the divorcing couple. One such transaction is for him to take over the payments on the existing first mortgage, and then issue a note to each individual for their portion of the equity. Both notes are recorded, and both notes receive payments. When the notes are paid off, each person receives their portion without any need for further discussion. This is a very appealing scenario to many couples. Conditions do have to be met with the first mortgage, but this is usually done fairly simply.
When there is no equity in the house, about the only option to relieve the couple from the title is to do a short sale. This is not a quick option, since negotiations have to be opened with the lender(s), and there is a lot of cooperation needed between the buyer, the sellers, and the lenders. However, the process is more quickly handled by a real estate wholesaler than waiting for a retail buyer to come in through a real estate agent.
So, what is the best option? It all depends on the individual circumstances. It depends on the couple. It depends on the condition of the house. It depends on the financing attached to the house. But there are more options available than just to list the house for sale and wait for the market to get around to you. If your goal is to be separated, and the house is one of the obstacles to that, much can be done for the motivated couple that protects the interests of the individuals.
Options on Dealing with the House
By Thomas Tribble
www.optionhouserealestate.com
In better times, when a couple was contemplating a divorce, the main consideration about the house was who gets to keep it, or how are we going to divide the proceeds from the sale of the house? These days the discussion raises the questions of whether or not the house will even sell, will there be any proceeds from the sale, or who has to keep it and deal with trying to maintain it or sell it.
In spite of all the bleak perspective on the market that is being broadcast, houses can still be sold, especially if the owners are willing to do some untypical things to get it done.
The most common approach is to list the house with a realtor and wait for a pre-qualified buyer to come along and relieve the sellers of their responsibility. As long as there is no sense of urgency to sell, and as long as the house is priced to sell amidst the surrounding competition, this is can be a very acceptable approach. However if the sellers do not want to wait for several months to get a potential offer, and they are willing to consider some other options, they can move the process along much more quickly.
The options depend on some specific economic and personal considerations that, in combination, make the approach unique to each case and set of circumstances. Specifically the options revolve around whether or not there is equity in the house, and whether or not the owners are willing to accept terms that may require some time to get them that equity.
In order to determine whether or not there is equity, a comparison has to be made between what is owed on the house and at what price the house can be sold quickly. The first part is straight forward and simply a matter of looking at statements from the first mortgage, second mortgage, and any other lien holders. This will total up all that is owed against the house. The sale price needs to be determined from looking at comparable properties that have recently sold, from comparable properties that are currently for sale, and the amount of time that those properties were on the market before they sold, and how long the current listings have been on the market. In the real estate industry this is called a Comparative Market Analysis. The accuracy of that analysis is critical and needs to include the costs associated with selling. Obviously, the price that is determined will govern which direction the sellers will need to go to achieve their goals.
Whether or not there is equity in the house, one selling partner may want to issue a Quit Claim deed to the other just relieve them self of any concern about the house. While this does not relieve the Quit Claiming partner from their obligation under any mortgage notes they have signed, it does allow the other partner to proceed with the house as they see fit. While I am not an attorney, nor do I play one on TV, the ramifications of issuing a Quit Claim Deed should be discussed fully with your attorney before you do this.
When there is equity in the house, the sellers must determine how much of that equity they can relinquish to sell the house quickly, if that is their goal, which is the next important decision: How quickly does the house need to be sold?
When the house needs to be sold quickly, often a real estate wholesaler is the fastest way to sell. The real estate wholesaler will purchase the house and engineer a deal that is tailored to the circumstances of the divorcing couple. One such transaction is for him to take over the payments on the existing first mortgage, and then issue a note to each individual for their portion of the equity. Both notes are recorded, and both notes receive payments. When the notes are paid off, each person receives their portion without any need for further discussion. This is a very appealing scenario to many couples. Conditions do have to be met with the first mortgage, but this is usually done fairly simply.
When there is no equity in the house, about the only option to relieve the couple from the title is to do a short sale. This is not a quick option, since negotiations have to be opened with the lender(s), and there is a lot of cooperation needed between the buyer, the sellers, and the lenders. However, the process is more quickly handled by a real estate wholesaler than waiting for a retail buyer to come in through a real estate agent.
So, what is the best option? It all depends on the individual circumstances. It depends on the couple. It depends on the condition of the house. It depends on the financing attached to the house. But there are more options available than just to list the house for sale and wait for the market to get around to you. If your goal is to be separated, and the house is one of the obstacles to that, much can be done for the motivated couple that protects the interests of the individuals.
HOW IS THE ECONOMY AFFECTING DIVORCES?
Is the current economic crisis reducing the divorce rate and keeping couples together? According to current news reports couples are choosing to remain married because they don't think they can afford a divorce. My divorce attorney colleagues verify that business is down dramatically. What's the real story here? Is diversity bringing couples closer together? From my perspective, No. Money troubles create a strain on the marriage and exacerbate problems that may have existed in good times.
Some couples are trying to "tough it out" by living in the same house as if they were roommates. This is hardly a satisfactory solution and certainly does not improve their mental health. If they have children, this creates even more confusion and turmoil for the children than if the parents were to move to separate homes. As their morale lowers, the financial difficulties become worse and the endless cycle continues.
Some couples search the internet for ways to get a "quick, cheap" divorce. Naturally I have a bias against this approach. I have found people who spent several hundred dollars and a lot of time and frustration and still were not divorced. I have had calls from people who were totally misinformed and sadly, I have had calls from people who let their spouse do all the work and now have serious regrets about what they gave up. Just the other day a young woman asked me if she could have her divorce settlement revised after five years! Filing in an unknown county across the state has many pitfalls, some of which don't appear until years later. If you have children, own real estate or either party has retirement accounts, you should at least have a conversation with a lawyer.
What can be done?
First of all, not all lawyers are scary. Some of us are quite easy to talk to and might even offer a cup of coffee along with a conversation. I explore alternatives with clients in keeping with their main interests. What are the alternatives for a house that has no equity or won't sell? What would it take to live in separate residences? How can you save on legal fees? I also point out ways to preserve privacy. Legal costs are a big concern and I, as well as many of my colleagues, am willing to discuss cost cutting measures.
Often after I have a conversation with prospective clients they find that I really do earn my keep. I can help them simplify the process and at the same time make sure all issues have been addressed.
I am available for questions either by e mail or phone. I would also like to share some stories about how other folks have handled a divorce in tough economic times.
Some couples are trying to "tough it out" by living in the same house as if they were roommates. This is hardly a satisfactory solution and certainly does not improve their mental health. If they have children, this creates even more confusion and turmoil for the children than if the parents were to move to separate homes. As their morale lowers, the financial difficulties become worse and the endless cycle continues.
Some couples search the internet for ways to get a "quick, cheap" divorce. Naturally I have a bias against this approach. I have found people who spent several hundred dollars and a lot of time and frustration and still were not divorced. I have had calls from people who were totally misinformed and sadly, I have had calls from people who let their spouse do all the work and now have serious regrets about what they gave up. Just the other day a young woman asked me if she could have her divorce settlement revised after five years! Filing in an unknown county across the state has many pitfalls, some of which don't appear until years later. If you have children, own real estate or either party has retirement accounts, you should at least have a conversation with a lawyer.
What can be done?
First of all, not all lawyers are scary. Some of us are quite easy to talk to and might even offer a cup of coffee along with a conversation. I explore alternatives with clients in keeping with their main interests. What are the alternatives for a house that has no equity or won't sell? What would it take to live in separate residences? How can you save on legal fees? I also point out ways to preserve privacy. Legal costs are a big concern and I, as well as many of my colleagues, am willing to discuss cost cutting measures.
Often after I have a conversation with prospective clients they find that I really do earn my keep. I can help them simplify the process and at the same time make sure all issues have been addressed.
I am available for questions either by e mail or phone. I would also like to share some stories about how other folks have handled a divorce in tough economic times.
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