Random Musings on Divorce and the Holidays

Blog posts are being replaced by the short status update or, worse even the limited character Twitter feed. I think of these posts as a version of haiku with a challenge of using real words in a concentrated form that gets a message through rather than give in to the shortened R U and OMG, My extra challenge is that I write about complex emotional as well as legal issues. So here are some random musings too long for the twitter feed.

Don't post about divorce during the holidays?

Recently I wrote a short quick update aimed at a very narrow group -- people who worked for a particular company on a particular legal plan who are contemplating divorce- now. Important information to that rather small niche. However, the message went to a wider audience and it was Christmas week. I was chided for bringing up such a topic in a week of peace and love and warm fuzzies. So I contemplate: Is the topic of divorce off limits for the holidays? Is it like the story of the soldiers in World War II that stopped fighting and sang songs on Christmas Eve? Did that really happen? Is it realistic in these complicated modern times? Are the only businesses open those that sell gifts and provisions for the big feast? I think not. Does divorce take a holiday? I know from experience it does not.

Christmases Past

Like Scrooge, I find myself recalling Christmases past. Fifteen Decembers now I've had to keep the store open. Last Christmas eve eve I spent the morning in line at the Honeybaked store for the family feast and then spent an hour and a half driving to an outlying courthouse. It should have been a 30 minute drive but I had to go past a major regional shopping center to get there and traffic was snarled for miles. The Family Law Motions Calendar was full of contentious cases. My clients were fighting over the house, the car, the kids and, I think, even the family dog. It was dark and gloomy when I left the courthouse. My client and his wife still hated each other and I can't even imagine what the festivities were like for the kids being shuffled back and forth between two families. No holiday here.

December traditionally is a very busy month for me. I no longer handle contentious cases but I do find the holidays exacerbate the tensions in a marriage and the family gatherings can bring out the worst. Then there are the New Year's resolutions. The last week of the year brings people who resolve to live differently in the coming year. They want a fresh start and want to let go of a marriage that is no longer serving either party. They want to take the first step before the new year. December 1999 was particularly busy with the "millennium divorces". Folks really examined their lives and wanted to enter a new millennium free from an abusive or loveless marriage.

I try to avoid the holiday custody battles and find the best way to avoid them is to anticipate eventualities in the parenting plan to begin with. New residences, new jobs and new relationships sometimes make existing plans unworkable. Hopefully the plan offers some flexibility or, at the least, the parents can mediate with a parenting specialist. Hopefully they don't wait till the holidays to do so.

Divorce trial in December?

The worst situation a couple can find themselves is with a December trial date. These dates are automatically set when the case is filed and are ten to eleven months out. Suddenly a couple is juggling the holidays with court dates. Trial date does not necessarily mean you start that day; rather you are put in queue until there is an available courtroom and judge. There are ponderous pre-trial and discovery motions and often recesses while the judge does something else. You can't stay late because court house staff can't stay overtime. Judges usually don't have regular trial calendar on Fridays. So you can easily use up much of the month of December. Note: If you have a December trial date, continue it for a couple of months, just in case.

Does Divorce EVER take a holiday?

Does divorce ever take a holiday? I found two such times in my career. Immediately after 9/11 people found themselves clinging to relationships or reconciling. I don’t have any records to see if those relationships did ultimately survive. I do know there were a lot of 9/11 babies born the following spring/summer.

Another time I found divorce seeming to take a long vacation was at the start of the recession. People were shell shocked. Out of work and underwater on their mortgage, these couples really tried to suck it up. Some subdivided the house with one moving into the basement or dividing up the bedrooms. As I thought at the time, this only created pent up demand for my services and in a few months these people moved forward with the divorce.

Your Divorce is Unique

So there is certain unpredictability about the divorce business and yet there are certain patterns. What I do know is that each case is absolutely unique to that individual. They don’t care how many other people have been in the same situation. Theirs is one of the most important, traumatic events in their lives.

These are my random musings for this week between the peace love and joy of the holidays and the resolutions for better times in the coming year.

Who is Karin Quirk?

This biography was written by someone else. She gathered information from my web site and other public documents. I guess this is a pretty good synthesis of the information.

Ms. Quirk has provided highly professional and affordable legal services since 1997. Her law office, located in Bellevue, Washington, focuses on estate planning, collaborative divorce and family law. Karin is a member of several professional organizations including, King County Collaborative Law, International Academy of Collaborative Professionals, Washington State Bar Association, King County Bar Association, Association for Conflict Resolution, Real Property and Estate Planning Sections of KCBA, WSBA. Ms. Quirk has received a number of awards and recognitions including,"Mediator of the Year" - Consumer Business Journal 2002, “American Jurisprudence Award: Trusts and Estates”, “American Jurisprudence Award: Federal Income Tax”, “Associate Editor” Western State University College of Law, Law Review, and most recently Ms. Quirk was named a 2010 FIVE STAR Wealth Manager^SM in Seattle magazine for scoring high in overall satisfaction. Only 7 percent of the wealth managers in the Seattle area were thus named after an independent survey of area consumers, financial service professionals and Seattle magazine subscribers that focused on criteria such as customer service, value for fee charged, knowledge/expertise, meeting of financial objectives, and more.

Is Your Divorce Too Complex to Be Cooperative?

Lately I have been seeing print and television ads for "complex" divorces, implying that some divorces require special handling by only those certain lawyers. Sometimes folks approach me and tell me they would like to engage in a respectful, cooperative divorce but their situation is too complicated. So when might a case be too complicated for a an amicable resolution?

Surprisingly enough, a case is not more complex because there is a lot of money involved. Some of my most difficult cases are ones where there simply is not enough money to go around. Often there is a great deal of rancor or the parties are really desperate and can't seem to find a peaceful resolution. On the other hand, a couple that has substantial assets can work very well with a Certified Divorce Financial Planner (CDFA) or even their own investment advisor to work out a reasonable resolution and division of assets. So a divorce involving a lot of money need not be "complex" and certainly can be approached in a cooperative manner.

A family business can be a little more challenging. I have seen small businesses destroyed by divorce because the process was so invasive and time consuming. If a family business is involved there is even more impetus to a cooperative approach. A neutral business appraiser can be engaged to help the couple determine a reasonable value for the business and the couple can determine a way to divide assets in such a way that the business remains viable.

Some people believe (or have been led to believe) that a divorce is complex if there are children involved and the parents are not in complete agreement on a parenting plan. Again, (is there a theme here?) it is advantageous to approach a divorce with children in a cooperative manner. I often engage a mental health professional who specializes in children to help the parents determine a parenting plan that is child-centric rather than parent-centric. The children certainly will be much better off if their parents can demonstrate that they can resolve differences in a respectful manner.

The cases that are extremely challenging is if there is domestic violence or impairment by drugs or alcohol. (I mean serious impairment, not just one party drinks more than the other). While I do know of instances that have had amicable resolutions while dealing with domestic violence or mental impairment it requires a great deal of commitment on the part of the party impaired or the violent one. Unless they agree to treatment there is no opportunity for cooperation. In these cases I have a referral list of lawyers who will not make it worse and will treat their client with respect. You won't find these lawyers in a TV ad.

So there is my bias toward respectful cooperative divorce. Most likely your divorce is not too complex for this approach.

Privacy Concerns in a Divorce

At one time divorce files could be “sealed” so that no one other than the parties or their attorney could look at the files. That is no longer. Divorce files are public record and available to anyone with or without a legitimate purpose according to the Freedom of Information laws. In many places the files are available on line or soon will be. The only way to keep such information from prying eyes is to not have it in the record at all. Just because you are getting a divorce does not mean you have to expose all of your private information to other’s scrutiny.

The information in a divorce file can include financial information, property settlement agreements, and worst of all, the unproven allegations one parent is making against the other. In some cases parenting evaluations, including psychological evaluations, are available to the curious. A business owner may find very private company financial information in these filings.

While filing for divorce (technically, dissolution of marriage) is a matter of public record there are ways a divorcing couple can avoid most exposé of their private information. Several forms of what I call co-operative divorce provide the means to keep all but the most basic information confidential. The parties’ property settlement agreement, while completely enforceable as a contract, is not filed with the court.

The privacy concern is probably on of the most important reasons to work with an attorney rather than on line programs or do-it-yourself divorce. The first thing I notice when do-it-yourselfers want me to review their papers is how willing they are to list all their assets, all their debt and other private information in the documents. No one tells them there is another way.

When engaged in co-operative divorce a couple keeps court filings to the minimum required to obtain a final decree. The settlement terms, financial disclosure and other concerns remain private. If there is a parenting recommendation by an evaluator or counselor, that information remains confidential to the parties and their attorneys.

What constitutes as co-operative divorce? This can range from a couple that agrees on everything and asks an attorney to draft final documents to a mediated divorce model where the couple works with one attorney on resolving the various issues and preparing the final documents all the way to a complex situation in which both sides have attorneys but the attorneys and the parties contract to keep the matter out of court. This last model is called collaborative law.

Collaborative law is probably the most revolutionary idea for divorce since the onset of no fault divorce. Besides the privacy issues I discussed above, collaborative law costs about one-third of the traditional litigated divorce. Studies have shown that the outcomes in collaborative law are not one sided and influenced by the person with the stronger personality and more importantly, that the outcomes are resolved. Litigated divorces often are re-litigated, and continue to be modified even years later. The evidence is that the parties are more apt to keep the agreements and don’t have to go back to court. Most important of all: PRIVACY IS PRESERVED.

Thank You to My Loyal Clients and Friends!

Thanks to you, I was named a 2010 FIVE STAR Wealth Manager (SM) in Seattle Magazine for “Best in Overall Satisfaction”.

Only 7 percent of the 11,000 wealth managers in the Seattle area were thus named after an independent survey of area consumers, financial service professionals and Seattle Magazine subscribers. What makes a FIVE STAR Wealth Manager? Excellent customer service, high value for fee charged, knowledge/expertise, meeting of each client’s financial objectives, and more.

I am honored to be selected for this award and appreciate your confidence in my services. Thank You for your continued support and for allowing me to help you and your family prepare for your future.

Learn more about the FIVE STAR Wealth Manager Award (pdf)

Tax Tips for Divorce

This advice comes from my friends at Special Solutions: http://www.specialsolutions.org/

One more reason why you want to make sure that you include tax planning in your divorce decree and child support.

Warning! Don’t violate the Child Contingency Rule!

If any amount of alimony specified in the divorce decree is reduced (a) upon the happening of any contingency related to the child or (b) at a time that can be clearly associated with a contingency related to the child, then the amount of the reduction will be treated as child support, rather than alimony, from the start. Code Sec. 71(c)(2). Reg. §1.71-1T(c)

What is a contingency? A contingency relates to a child if it is dependent on an event relating to the child, regardless of whether the event is likely to occur. Some examples are:

- Reaches age 18, 21 or the age of majority in their state
- Gets married
- Graduates from school
- Leaves home
- Joins the military
- Gets a full-time job

Section 71 of the IRC provides two situations where payments would not qualify as alimony if they are reduced at a time clearly associated with a contingency relating to the child.

Six-month rule

The first situation occurs when the payments are to be reduced not more than six months before or after the date on which the child reaches age 18, 21 or the age of majority in their state. And this means all three ages!

Multiple reduction rule

The second situation is when there is more than one child. In this instance, if the payments are to be reduced on two or more occasions which occur not more than one year before or after each child reaches a certain age, then it is presumed that the amount of the reduction is child support. The age at which the reduction occurs must be between 18 and 24, inclusive, and must be the same for each of the children.

The following example shows what many attorneys have incorrectly advised their clients to do.

Example: Kevin and Karen are getting divorced and their son, Josh, is going to live with Karen. Kevin is going to pay Karen $3,000 per month maintenance plus child support. Kevin’s attorney says “Josh is graduating from high school in 5 years, so why don’t you pay Karen maintenance for 5 years.”

Or the attorney will say, “Since Josh is graduating in 5 years, why don’t you pay Karen maintenance of $3,000 a month for 5 years and then reduce it to $2,000 a month for an extra 3 years. Karen won’t have as great a need when Josh leaves home.”

This is creating a serious tax problem for Kevin. The IRS may consider the reduction of $1,000 a month to be child support because it coincides with a child contingency. The IRS will then go after Kevin to collect the taxes he saved by calling it maintenance and they will make it retroactive from the beginning. Five years (60 months) times $1,000 is $72,000 that he will have to pay tax recapture on!