Divorce Litigation Madness

Posted on February 14, 2012 by wpadmin

Some divorcing spouses imagine that a day in court is a day of vindication, but it is not. Judges have heard it all before, and rarely does the court recoil in righteous indignation when one side or the other recounts the wrongs a spouse visited on the marriage. That’s one reason to avoid litigation. The other is cost. Litigation is war, and like war it bankrupts the belligerents.

Only a tiny fraction of all divorce cases ever go to court, and with good reason. According to one source, in states with equitable distribution of assets (41 of the 50), each of the parties usually receives about half the assets, and it is very unusual for one party to receive more than 60 percent. “Given that he legal fees for a litigated divorce often exceed $160,000 total for both parties, and assuming that a skilled litigator might be able to get an extra 2 percent of marital assets awarded to his/her client, a litigated divorce make economic sense only if total marital assets are more than four million dollars,” according to Ronald B. Standler, the author of “Litigated Divorce in the USA As a Waste of Assets.”

Equitable distribution means fair, not necessarily mean half or even equal. Equitable distribution considers the financial situation of each spouse. This routine is more flexible, and in many jurisdictions judges exercise discretion in dividing the marital pie. For example, in one common situation, a court may award the custodial mother the marital home and give her husband cash assets even when that distribution is not equal. Courts can use equitable distribution to take into account liabilities that may accrue to one partner by virtue of the length of the marriage. For example, a court may favor a stay at home mother whose long years out of the workforce have made her employment problematic.

In most contested cases, lawyers continue to negotiate in search of a settlement even as they prepare for the courtroom battle because the preparations are part of the jockeying for position.

Moreover, aside from the staggering cost of a court battle, reputable lawyers know that couples who end their marriage in the courtroom part ways with a lasting hatred for one another than makes parenting after the divorce all but impossible.

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New York No-Fault Divorce

Posted on January 25, 2012 by wpadmin

On August 15, 2010, Governor Patterson signed a law, which will allow for no-fault divorce. This means that a person can get divorced without having to prove grounds, which is a reason for the divorce. After signing the bill, the governor stated, “[f]inally, New York has brought its divorce laws into the 21st century.” This will make getting divorced far easier.

The law states that a party is entitled to a divorce if his/her marriage has broken down irretrievably for a period of six months. “Broken down irretrievably” just means that the marriage is dead. The law states that a party is entitled to a divorce if his/her marriage has broken down irretrievably for a period of six months.

However, the law is not clear as to what a person has to do to prove his/her marriage has broken down irretrievably. Under the new law all a person has to do to get a divorce is sign a sworn statement stating that his/her marriage is irretrievably broken.
A Judge in Ulster County recently held that a party need not prove an irretrievably breakdown at trial. In other words, he seemed to indicate that signing a sworn statement is enough to get a divorce.

New York is the last state to enact no-fault divorce, which gives spouses the option of obtaining a no-fault divorce on a unilateral basis. No-fault divorce is the mechanism by which one spouse can terminate a marriage citing only irreconcilable differences. In other words, a spouse seeking a divorce in a unilateral no-fault state need not prove that the other spouse did anything wrong.
The move toward no-fault divorce – the liberalization of divorce laws – began in California in 1969 when then Gov. Ronald Reagan, himself a divorce man, signed what is considered the first no-fault law. Within the decade, almost all the jurisdictions had enacted some form of no-fault divorce.

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Divorce Plagues Children’s Social and Academic Lives

Posted on January 9, 2012 by wpadmin

Young children struggle with math, social skills and emotions such as anxiety and depression for at least two years after the split when their parents divorce, a new study finds.

The research studies the effects of divorce by the predivorce, during-divorce and postdivorce phases. Surprisingly, said study researcher Hyun Sik Kim, a doctoral candidate at the University of Wisconsin, Madison, parents’ predivorce marital problems didn’t influence their children’s social and school success, but children fell behind and failed to catch up for at least two years once divorce proceedings began.

“Previous research has shown that divorce is tough on kids, with one study showing the experience doubled a kid’s risk of stroke over a lifetime, perhaps due to the effect of stress. But parental screaming and fighting are bad for kids, too, so the question remains: Is divorce ever good for kids?

Kim used data from a nationally representative long-term survey following kids who entered kindergarten in 1998 until eighth grade. He followed kids whose parents got divorced between their child’s kindergarten and third-grade years, finding 142 kids of divorce compared with 3,443 kids in intact homes. Children whose parents had been widowed or already divorced and remarried were excluded.

After controlling for factors such as socioeconomic status, teen parenthood and parents’ marital satisfaction, Kim compared the kids of “stable” and “split” households on measures including math and reading tests, teacher ratings of social skills, and teacher ratings of behavioral problems.

He found that kids of divorce began to struggle as soon as their parents began divorce proceedings. Over the next two years, the kids of divorce stayed behind other kids on math skills and social skills and they began “internalizing behavior problems,” that is, behavior problems that manifest themselves by way of sadness, loneliness, anxiety and depression, Kim found.

Given that parents on the road to divorce likely have troubled marriages, Kim had predicted that the conflict would be reflected in their kids’ development.

“It was a little bit surprising, but when I looked the research about divorce and child development, there are some explanations,” Kim said. “For example, not all divorces are plagued with marital conflict.”

Another explanation, he said, is that parents whose children seem especially sensitive (struggling even without divorce) might decide to hold off on divorce for fear of upsetting their child. Thus, a large proportion of kids struggling with unhappy parents end up in the two-parent home group rather than the divorced-parent group.
The sample size wasn’t large enough to look at the effects of divorce by gender, age or ethnicity, Kim said. One 1989 study found that children whose parents divorced in the first five years of the child’s life were worse off than children whose parents divorced later, so the results may not apply to every age group. Kim plans to replicate the study with different groups of kids.

In the meantime, he said, there are good reasons that the divorce and postdivorce phases may be tougher on kids than predivorce discord. Custody battles, a parent moving away, and the shuttling back and forth between two new households can all cause hardship, Kim said.

The best thing I can suggest is that when we observe children of divorce, we need to intervene as early as possible,” Kim told LiveScience. “Because if children of divorce undergo a certain stage, then it is hard to make them catch up to their counterparts.”

Kim reported his results in June in the journal American Sociological Review.

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Finalizing the Divorce

Posted on December 19, 2011 by wpadmin

Finalizing a divorce means that the judge signs the divorce decree ending the marriage. The route to this point may vary depending upon whether or not the divorce is contested or uncontested, but at some point, sometimes after a short hearing, the court is ready to move.
To get to that point, the filing party should be sure he or she has all the appropriate paperwork with the court. All the copies should be stamped and, if necessary, notarized affirming the dates a party submitted each document.

In an uncontested action, the filing spouse can then make an application for entry of default and mail a copy to the defaulting spouse. Normally, all mailed paperwork must be notarized and all mail should be sent certified mail with signature required and a return receipt.
Some jurisdictions require a parent with minor children to complete a parent education course. The court may require proof of completion of this course.

These steps may not be applicable in all states and some states may have additional requirements. Applying for an entry of default does not guarantee that the finalization of the divorce. Most states have waiting periods between the filing and the finalization of a divorce. Here are a few:

> New York
: a 30-day waiting period that begins when respondent spouse is officially served divorce papers.
> Texas: a 
60-day waiting period that begins as soon as the divorce is filed.
> Florida: a 20-day waiting period that begins as soon as the divorce is filed, but can change if the Court decides that a waiting period is unjust.
> Illinois: Both parties must first show that they have been living “separate and apart” for an uninterrupted period that exceeds 2 years. “Separate and apart” does not always require the couple to have lived in separate housing. In the case of a no-fault action, that period of can be reduced to 6 months when parties waive the 2-year requirement in writing.
> California: 
a 6-month waiting period that begins when respondent spouse is officially served with divorce papers.
In some jurisdictions, the filing party the must schedule a hearing date. All appropriate paperwork should be taken to the hearing, which is normally very brief. Included in the paperwork is the decree of dissolution of marriage and the domestic default cover sheet, along with the child support order, order of assignment and fact sheet if necessary.

In some cases, the judge signs the decree after the hearing.

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Divorce Mediation Helpful

Posted on December 6, 2011 by wpadmin

Everyone knows divorce horror stories of marriages that end in the trench warfare of a divorce trial. Anyone who has ever gone through this ordeal knows that the slash-and-burn of divorce warfare takes a heavy toll of everyone involved.

Divorce mediation is a way that divorcing spouses can take the high road, and in the process, avoid a great deal of emotional and financial damage.

In divorce mediation, a neutral third person, called a mediator, sits down for a series of meetings with a divorcing couple to help them reach an agreement about things like property, custody, and support. Most couples arrive at agreements they can live with. This means they don’t have to fight it out in court.

Mediation offers many advantages over court battles, which leave the spouses emotionally exhausted, financially destroyed and emotionally devastated. The parties can go to mediation at any point in a divorce, even if they have hired lawyers. Divorce mediation has an extremely high success rate–the vast majority of cases that go to mediation get settled there.

Divorce mediation works best when both spouses realize that neither is going to get everything he or she wants. Some divorcing people can negotiate directly with a spouse with a minimum of acrimony to come to an agreement about dividing property and parenting children, but many find that the neutral guidance of a mediator works well to help them across the rough patches of give-an-take negotiation.

Generally, mediation is voluntary. Some courts require mediation if spouses can’t agree about child custody. When both spouses cooperate, divorce mediation helps them achieve a fair settlement, that is, one that makes neither of them happy but one that both can live with.

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Divorce and Menopause

Posted on November 15, 2011 by wpadmin

Yale- and Harvard-educated neuropsychiatrist believes that changes in female hormones after menopause may be responsible for the fact that women initiate nearly two-thirds of divorce actions.

In her book The Female Brain, Dr. Louanne Brizendine argues that menopause puts an end to the fluctuating hormone levels and with it comes a much more stable brain and a less maternal woman. A woman who, says Brizendine, is “less worried about pleasing others and now wants to please herself” and that may mean taking on new challenges or a new job and leaving the old life, including her husband, behind.

Female hormones affect women’s brains in evolutionarily advantageous ways, but they may also spur older women to start new lives — even if that means leaving their husbands behind. Women initiate two-thirds of all divorces, and “statistics worldwide … claim the majority of divorces in couples over the age of 40 are initiated by women.” An AARP Magazine survey of almost 1,200 people who divorced in their 40s, 50s, or 60s found that women initiated 2/3 of the divorces. Kate Vetrano, chair of the ABA’s Elder Law Committee, said these women are “shedding their marriages in the quest for happiness.”

According to Brizendine, Mother nature unplugs the “mummy part” of the female brain by reducing the supply of hormones that promote maternal, caring, peace-promoting instincts. After menopause, these hormonal surges and fluctuations, which came with the menstrual cycle and result in moodiness, depression and even the ability to see insults when they were not intended, taper off. During the childbearing years, the female brain is marinated in estrogen – a hormone affecting the amygdala and prefrontal cortex, the emotional processor and emotional assessment and judgment area of her brain. The effect of this heightens a woman’s communication and emotional circuits, giving rise to those maternal instincts, which tend, care and do the best they can to avoid conflict to give the family unit the best possible chance of survival.

Brizendine suggests that women at midlife may have biochemical reasons to be less happy than they once were, and to be ready to make dramatic changes. The AARP survey also found that most women sought divorce for infidelity, or substance abuse. That’s not incompatible with Brizendine’s argument that hormonal changes cause older women to put up with less.

The Female Brain, first published in August 2006, was recently published in paperback. Brizendine is currently director of the UC San Francisco Women’s and Teen Girls’ Mood and Hormone Clinic.

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Parental Alienation Syndrome (PAS)

Posted on November 3, 2011 by wpadmin

One of the saddest outcomes of a divorce with children happens when one parent attempts to poison the hearts and minds of the children.
First identified in the 1980s by Dr. Richard Gardner, the Parental Alienation Syndrome (PAS) finds a variety of outlets that all make a child a victim of a parent’s inability to rise to the admittedly difficult task of coparenting with a former spouse. These include the following:

> Speaking badly (“badmouthing”) the absent parent in he presence of the child or children. For example, a parent may suggest or say directly that the financial hardships of divorce happened because the absent parent choose top spend money of a new partner.

> Making the child privy “to the details of the divorce and the ongoing conflict between the parents.”

> Using body language to communicate dislike for the absent parent.
“Such body language sends a negative message without a word being spoken. Children are smart and know that a roll of the eyes is a dismissive gesture. One clearly meant to send the message that the other parent is stupid or wrong in some way.”

> Refusing “to be around the other parent or to co – parent.”

> Accusing the other parent of “sexual, physical or emotional abuse.”

Divorced parents must parent cooperatively and they must put the needs of the child ahead of their own. “Children who have to live with the unresolved conflict and anger of their parents suffer tremendously. Add to the normal stress of separation and divorce the feeling that the child should choose between the parents and you can cause damage that lasts a lifetime. A child is powerless when it comes to ending the conflict he/she is witnessing. They may feel that if they make a choice it will lessen the conflict they have to live with. One parent can cost their child the other parent and their only motivation is revenge, fear, anger or jealousy. It’s a terrible price for children to have to pay in an attempt to assuage a parent’s feelings.”

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Divorce is Hard on Earth

Posted on October 19, 2011 by wpadmin

Divorce is hard on everyone involved, including planet Earth. A recent study by researchers at Michigan State University’s Department of Fisheries and Wildlife asserts, basically, “divorce is bad for the planet.”
Researchers Jianguo Liu and Eunice Yu really didn’t reveal anything that is too surprising once considered objectively.

Basically, the report notes that as families transition from one home to two households following divorce, more resources are sapped from the natural environment. In other words, divorces require the building of more homes, the use of more land, and the need for more building materials. Moreover, after a divorce, households do not consume resources as efficiently. With fewer people living in a home following divorce and other family members transplanted somewhere else, more electricity and water is used, more goods consumed, and more greenhouse gases emitted on a per capita basis.

Liu and Yu conclude that six million more homes existed in the United States circa 2000 because of divorce. Assuming that the “resource-use efficiency” of divorced households was comparable to that of married households, Liu and Yu found that divorced households could have saved 38 million rooms, 73 billion kilowatt-hours of electricity and 627 billion gallons of water in 2005 alone.

While it is hard to imagine a soon-to-be divorced person thinking about how his divorce is going to affect the planet when he or she may already be worrying about issues, this message still has much relevance.
While divorce may not always be ideal, it can be necessary in some instances. And while divorces drain more resources, they can also bring on much-needed, positive changes in the lives of those directly involved. It’s unfortunate how this “divorce is bad for the planet” assertion seemed to be what most media took from this report when the message that families need to do a better job of conserving resources following divorce could have been a great starting point to explain how they could actually do so.

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The Divorce Party

Posted on October 10, 2011 by wpadmin

Many man and woman memorialize their passage back to the single life with a divorce party. The protocols for these parties vary, but one source offers these tips for the perfect bash:

> Wait until the divorce is final.

> Make sure your kids are out of the house. 


> Don’t schedule anything important for the next day. 


> Invite anyone who has stood by you through the divorce, including your divorce lawyer
.

> Avoid inviting anyone who might think less of you if they see you in party mode.

> Consider inviting your ex-spouse, as long as you have divorced amicably.

> Keep the mood light and happy and focused on the future; don’t dwell on the negative. 


> Plan to watch divorce themed movies like the First Wives Club, Le Divorce, War of the Roses, or Waiting to Exhale
.

> Consider a “burning of the marriage license” ceremony. 


> Don’t do anything you will regret, like bad-mouthing your former spouse, burning mementos that may be important to your children, or becoming too intoxicated.

Although divorce is often times a necessary evil, a divorce party may be a way to put a positive spin on an otherwise negative situation. Many couples who have children together remain friends after the divorce. This can help children deal with the dislocation and pain of a divorce.

While some people may see a divorce party as being distasteful, it is really just a way to come to terms with a difficult situation and move forward. There is no sense in dwelling on a past negative relationship. Divorce is never easy, but a divorce party, like a wake, helps people understand that divorce is a part of life and shows them that they have the support of their friends in moving on.

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Divorce and Taxes

Posted on September 27, 2011 by wpadmin

Divorce complicates life, particularly when there are children. One particular area complicated by divorce is the filing of taxes. The increasing complexity of divorce agreements has made determining what each spouse owes the IRS more complicated than ever. Here are five tips to help recently divorced couples with the filing of their taxes:

> The calendar year will determines marriage status. A divorce finalized in the 2011 calendar year means the spouses can file jointly for 2010 taxes. A divorce finalized at any point during the 2010 calendar means the couple cannot file as a married couple – even if they spent the majority of the year married.

> Paying taxes on the house. The spouse who gets the house may end up owing taxes on it since capital gains taxes apply to the recently divorced. In general, a married couple will not have to pay capital gains taxes on their primary residence if the gain is less than $500,000. However, the newly single person who sells the house as a single person pays on the gain over $250,000. Therefore, if the house appreciated by more than $250,000, he or she ends up owing if it is sold.

> Joint custody doesn’t necessarily permit the custodial parent claim the kids as dependants. Custody arrangements are becoming increasingly complicated, as more and more parents are getting creative with these agreements. A parent designated as the custodial parent by court order can claim the children as dependents. However, such an order often does not exist. In these cases, the parent who has custody for the majority of time is generally considered the custodial parent. In cases where custody is 50/50, only one parent will be able to claim the same child as a dependent. Parents of more than one child can split the dependency of the children so that each receives the tax benefits. Parents of only children sometimes switch off years, so that each receives the tax benefits every other year.

> Spousal support gives the payor a tax break. In most cases, paying alimony reduces taxes. However, these payments must be mandated by a written separation or divorce agreement, and they cannot be considered child support.

> No tax breaks on child support. While spousal support is considered tax deductable, child support is not. This is something to consider when apportioning values for spousal support and child support.

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