When considering divorce, it is important to keep in mind that there are different ways to go about resolving your differences. The four most common ways to proceed in divorce include do-it-yourself divorce, mediation, collaborative divorce and divorce through litigation.
Do-It-Yourself Divorce. To say that divorce is complicated is an understatement. Dissolving your marriage, splitting up property, and establishing child support and visitation schedules is a complex process with serious legal and financial ramifications. While you can attempt to file for divorce on your own, it is rarely advisable because it is easy to make a mistake and difficult to undo such mistakes. If you are determined to use this route, you still may want to consider having an attorney review the final documents. Many lawyers may offer this service for a nominal fee.
]]> Mediation. In mediation a trained, neutral mediator sits down with both parties and helps them come to an agreement on all aspects of their divorce - from who gets the china to who has the kids on major holidays. Mediation is often best for those who want to try to maintain a long-term working relationship with their soon-to-be ex. Proceedings tend to be less contentious than a litigated divorce, but at the same time it is not without complications. Issues of law still have to be ruled upon by the court, and it is important that any agreements reached in mediation are properly documented in an enforceable agreement. Additionally, while typically less expensive than litigated divorce, both parties still must secure their own attorneys for advice during the proceedings.Collaborative Divorce. The collaborative process is similar to mediation in several ways, with attorneys for both parties working to reach reasonable agreements outside of court. The collaborative process also involves other neutral professionals, such as financial planners and therapists. This process generally works best when both parties are willing to work together. It is not advisable when financial situations are particularly complicated or involve high-value assets or businesses. All agreements reach still have to be approved by the court.
Divorce Through Litigation. Litigated divorce is the most common form of divorce, with parties filing for divorce in the form of a lawsuit. Because divorce often involves one spouse wanting the divorce and the other not, it is no surprise that divorces end up being contentious and thus result in lawsuits. In most cases (about 95 percent) agreements are reached out of court to resolve these lawsuits, but it is still considered divorce through litigation.
If you are considering a divorce, be sure to seek out a family law attorney who is not only skilled in handling divorce and child custody issues, but who has a reputation for being a highly skilled negotiator.
Source: Forbes.com, "The Four Divorce Alternatives," 4/24/12.
]]>The research compiled shows that Internet searches for terms like "divorce" and "child custody" increased by 50 percent during the time period between December 2010 and March 2011.
While no one is quite certain why there may be an increase in divorces during March, some suspect that the holiday season may be part of the reason. Being with one's family, especially with young children, may be important during the holidays and as a result many couple may wish to avoid initiating a divorce until after that time.
]]> For others, the holidays and associated stress may actually lead to a divorce, or may at least be the catalyst to finally end a marriage that is already on the rocks. Though it is less likely, some people even believe that the stress and pressure of the holiday season may cause spouses to cheat, and that is why filings for divorce start to increase in January.Another reason why divorce may occur in the early months of the year, given the difficult financial times many are experiencing, is money. Divorce can be an expensive proposition for most couples and money can be a major concern. For financial reasons, couples may stay together through the end of the year so they can still file their taxes jointly and take advantage of tax breaks provided to married couples.
The root causes of divorce may be unknown, but it is an unpleasant fact that many marriages will end in divorce today. And, based on patterns being established by recent statistics, March is the most likely month for struggling spouses to take the steps to file for divorce.
Source: KPLU.com, "Why most people get divorced in March," 3/9/12.
]]>The overwhelming majority of divorce lawyers surveyed in a recent study explained that text messages and social media are increasingly being used as evidence in divorce proceedings.
]]> The reasons why make sense-oftentimes, it is easy and fast to communicate using these platforms, especially in times of high emotion. Unfortunately, it can also be difficult to erase that emotion once the message has been sent or posted. Such can be the case for a married couple in a deteriorating relationship, who may soon face the prospect of court proceedings.A text message admitting adultery, threatening violence or explaining that certain property was a gift of love can prove very helpful in a divorce case. In the past, divorces often turn into a "he said, she said" kind of fight, complete with disputed claims and different accounts of how things happened. But now, the use of Facebook, Twitter and cellphone text messages provide a way to rebut claims made in court about how a relationship ended or what property belongs to whom.
On the other hand, the increased use of digital evidence in divorce proceedings should serve as a lesson to those in New York considering a separation from their spouse. In a digital world where data can go viral in an instant, it is important to take care to avoid sending messages that could come back to haunt the sender in the future.
Source: MSNBC.com, "Divorce lawyers see more phone evidence, especially texts," 2/10/12.
]]>In the past, the focus of custody agreements involved which parent the children would spend their time. But a growing trend now in custody agreements is the issue of religion.
Religion is a huge part of many families' lives. Parents wish for their children to continue to practice or partake in religious practices, divorce or no divorce. But when dealing with the issue of religion it is not enough to simply state which domination children should be raised - the level of complexity in the agreements has grown tremendously. Some agreements even detail as to who should pay for a bar mitzvah or where the children should attend Sunday school.
]]> Religion can be a particularly touchy subject in custody agreements when one parent's faith differs from the other. Faith can play a larger role once the parents are legally divorced, especially around the holidays. When a meshing of the different religions existed, the custody agreement will now separately expose children to the differing religions.And religion is not the only issue that is being hashed out in the minutest details in custody agreements. The growing complexities of these agreements include pages of details on education plans, dating rules and disciplinary actions.
Is a complex and detailed agreement best for the parents and their children? The opinions differ. Some say that these details, especially religion, can be confusing for the children. On the other hand, some divorce professionals say that the details can be very helpful for families of divorce. Going into a lot of detail make seem uncomfortable, but it can ease some of the tension and challenges of raising children after divorce. Also, by making an agreement more detailed, it can make it easier to resolve disputes.
Source: Washington Post, "Divorce's details: Custody agreements are getting more complex," 12/26/2011.
]]>Currently in the state courts, the temporary spousal support calculation only takes into consideration the needs of the spouse with the lower income. The proposed changes would take both spouses' income into consideration and calculate the amount of spousal support using a mathematical formula.
This change would assist low-income, self-represented spouses in proving to judges their need for spousal support, according to the New York City Bar Association.
]]> In addition, the bar association has encouraged the Law Revision Commission to reevaluate the consideration of licenses, degrees and certifications as a financial asset in temporary spousal support calculations. This process treats future earnings as income and assets - therefore awarding too much spousal support to the spouse without comparable degrees, licenses or certifications.The bar association is also pushing for changes to permanent spousal support calculations. Since wealthier couples have more complicated financial situations, the association is recommending that the permanent spousal support calculation only apply to couples with a combined income of $130,000 (as opposed to the current combined income level of $500,000).
The New York State Bar Association argues that all of the above changes will provide consistency and predictability across spousal support cases in New York state - and make it easier for attorneys to provide accurate and reliable guidance to their clients when it comes to spousal support.
Source: Thomson Reuters, "NY bar association recommends changes to spousal support.
]]>Holidays are a stressful time as it is. This stress is even more exacerbated when trying to determine who the kids will spend Thanksgiving, Christmas Eve, Christmas and New Year's with. You clearly want to spend time with your kids and they most likely want to spend time with you, but they cannot be in two places at once. And unless you and your ex have an amicable enough relationship to spend those days together, chances are your children are feeling torn about who they get to spend the various holidays with.
To reduce stress not only for your children, but also for yourself, be flexible.
]]> Your parental custody and visitation agreement might have specific holidays built into it, but as your children grow their wishes during the holidays need to be taken into consideration.Is it essential that you celebrate Christmas with your kids on December 25th? Is the celebration and time spent any different if it is on December 26th instead? Remember that the holiday season is about the season and spending time with loved ones and not so much about the exact dates. Be flexible with your dates.
As a family, you may have had traditions each year. Perhaps your in-laws came over on Christmas morning when stockings were opened. Or everyone played flag football after Thanksgiving dinner. While many of those traditions may no longer be possible since the divorce, it does not mean that new traditions cannot be established. Try to preserve any traditions you can for the kids' sake, but create new ones as well that your children will associate as spending time with you (and perhaps a new partner) during the holidays.
For many divorced couples, the new reality is that your ex's new spouse or partner will become a part of the celebrations. If you can, set aside all differences for a day and let all family members -- including former in-laws, your ex and significant others -- come together for the sake of the kids. When everyone is able to hang out peaceably together, it helps reassure your kids that they still have a strong sense of family, even if it has shifted from what it used to be.
The worst thing that can happen is for your children to feel torn between their parents. So, during the holiday season, set aside your feelings about your ex and focus on the feelings of your kids.
Source: Huffington Post, "Divorced Parenting During the Holiday Season: Flexibility is Key," 11/15/11.
]]>In 1950, single dads -- something only seen on shows like My Three Sons and Andy Griffith -- accounted for only 1.1 percent of all households. Fifty years later, that number had grown to 6.3 percent. And now, just ten years later, it has jumped once again: 8 percent of all American households with children are parented by a single father.
]]> Single mothers are still more predominant than single fathers, but this increasing growth shows a shift in single-parent families. Experts say that greater acceptance of unmarried couples and shared custody arrangements have changed traditional child-rearing ideas. They believe that as the nation becomes more accepting of nontraditional families and as more mothers enter the workforce, single dads will continue to become more involved in the lives of their children and there will continue to be a rise in households led by single fathers.Part of this shift has been led by the fact that fathers are becoming more successful in court. A family law professor at the University of Notre Dame noted, "If the dad is really interested in getting custody and wants to have a relationship with his kids, he is far more successful than he was 20 years ago."
Before 1973, men were typically only granted custody if the mother was dead, in jail or mentally ill. Absent one of those three situations, the presumption was the mother was a better caregiver. But that is no longer the case. In fact, state custody records actually show that custody by single fathers has grown by almost 40 percent in the last decade -- suggesting that the census data doesn't have the whole picture.
Source: "Single-Dad Courtroom Wins Show Greater Embrace of New Families."
]]>Those are not the only family-law related challenges faced by gay couples in New York -- another major battle occurs when it comes to parental rights.
]]> Currently, the law is such that when a same-sex couple has a baby and an unknown donor is involved, the non-biological parent has no parental rights. To secure those rights, that parent must apply for a second-parent adoption. The legalizing of same-sex marriage in New York now raises the question of whether this second-parent adoption is necessary.When a child is born into a heterosexual marriage, there is a presumption by the courts of legitimacy -- that is, it is presumed that the married couple are the biological parents of the child. In New York, the question now is whether this presumption would also apply to married same-sex couples.
But even if New York does determine that the presumption of legitimacy holds true for children born into same-sex marriages, same-sex couples may still want to extra steps to secure parental rights.
If the family were to move to a state that does not recognize same-sex marriages, then there could be danger in having the parental rights tied to the marriage, because that state might also not recognize parentage. It is best, then, if you are not the biological parent, to fully protect your own legal rights by discussing a second-parent adoption or other options with an experienced family law attorney.
Source: Creative Parenting Agreements Still Needed With Same-Sex Marriage
]]>Under DOMA, states have the right to not recognize gay marriage and same-sex unions as a valid marriage. Strictly defined, marriage is the "legal union between one man and one woman." Given that federal law trumps state law, when states like New York enact their own laws on same-sex marriage, uncertainty remains for the couples when it comes to how their marriage is recognized by states that have not legalized same-sex marriage.
]]> According to an article in the New York Law Journal, DOMA puts the other 49 states in the union into 3 categories. The first category consists of five states and the District of Columbia, all of which recognize same-sex marriage. The second category has 40 states, in which "mini-DOMA" laws exist, basically denying marriage recognition for same-sex couples married in states that have legalized same-sex marriage. The last category includes the remaining four states, such as Maryland, which recognize out-of-state same-sex marriages to a varying degree.States refusing to recognize marriage laws of other states is nothing new -- all states have not always recognized the validity of interracial marriages or marriage among family members. This adds additional challenges to what family law court decisions are enforceable in other states. One example of this could be seen if a same-sex couple in New York divorces and seeks to enforce a child support judgment in Virginia. Since Virginia is a "mini-DOMA" state, it would not recognize the New York Court divorce decision, so the party seeking enforcement would not be successful.
These challenges are just a few of those that gay couples in New York will continue to face. While the passage of the state act recognizing gay marriage was a victory, the battle for equal marriage rights still continues.
Source: Creative Parenting Agreements Still Needed With Same-Sex Marriage
]]>Across the state, hundreds of domestic partners stood in line at state clerks' offices for their number to be called so their long-awaited weddings could begin. Typically, couples have to wait 24 hours after receiving their marriage license before they can be married. Judges in New York City and other areas of the state waived the mandatory 24-hour waiting period so that many of same-sex couples could exchange "I dos" minutes after getting their marriage licenses.
The first couple to marry in Manhattan had been together for over 23 years. After the ceremony the 77 year old and 85 year old raised their arms in celebration, holding out their white and blue marriage certificate. The 77-year-old woman said, "It's mind-boggling. The fact that's it's happening to us -- that we are finally legal and can do this like everyone else."
]]> A couple on Long Island had been together for 15 years when they tied the knot on Sunday in front of their 8-year-old daughter. One of the women, an attorney in Queens, said, "We've been waiting for this day. And now we're waiting for the day it becomes legal on a federal level."Another couple in Buffalo was pleasantly surprised when they were told they could marry Sunday afternoon. They had stood in line, planning only to get a license, and then wed a few days later. But because they married in Toronto six years ago, they would were told they could be married that day.
In New York City, believing that over 2,500 couples would want to marry on Sunday, officials established a lottery system so that the first 800 could be married the same day. By the time the lottery was over, only 823 couples had signed up, so the city decided to perform the wedding ceremonies for all of them on Sunday.
It is believed that at least 1,200 marriage licenses were issued to same-sex couples throughout the state within the first two days of the law being enacted.
Source: LoHud.com, "Couples wed on 1st day gay marriage is legal in New York," 7/24/11.
]]>The Marriage Equality Act unilaterally is a huge step forward for same-sex couples in New York State. Effective July 24, 2011, the Act instills the right to obtain a marriage license and to marry. Under the Act, same-sex couples will be able to:
These are only a few of the rights that same-sex couples in New York will now have.
]]> Presumably, upon the dissolution of the marriage, equitable distribution of marital assets, spousal maintenance and child support will all be available to same sex couples as well.Children born during the marriage under the new Act will likely enjoy the presumption that both parties are the parents of the child; the adoption of the children born before same-sex marriage was legalized should be easier to achieve.
Despite the New York State Marriage Equality Act, same-sex couples will not have the right to file a Federal Income Tax return as a married couple, with all the benefits and deductions that accompany that right due to the Defense of Marriage Act. However, the Act will allow same-sex couples to file a state return together under New York State law.
With a state as large as New York extending this right to same-sex couples, it will be interesting to see how other states respond to the demands of constituents wanting the extension of this right.
]]>One possible explanation for the difference is America's "No-Fault Divorce" law. In every state (New York was the last to pass the law in 2010), couples can file for a no-fault divorce. This essentially means that they can be divorced without a traditional reason, like on the grounds of adultery or physical abuse. Now one individual in the marriage can say it's over, and it will be over - regardless of whether that is what the other spouse wants. Eighteen states require a waiting period before the divorce can be granted, in order to allow the couple time to reconcile.
]]> This waiting period is even greater for divorcing couples in Britain and France. If a spouse asks for a no-fault divorce and the other spouse disagrees, then the couple must live apart of several years (five in Britain, six in France) in order to allow them to reconsider the decision. With wait times as long as these it is likely that more reconciliations happen, which is why the divorce rate is lower in these countries than in the U.S.And this high rate of divorce has a substantial economic impact. The average divorce has at least one child involved. In most cases, this will make the family eligible for government subsidies such as welfare, food stamps and Medicare - which, in turn, costs taxpayers an average of about $20,000 per divorce.
With increasing state budget crises, a number of states are looking to decrease the costs of divorce. Thirteen states are considering enacting the "Parental Divorce Reduction Act." Under this act, those looking to get divorced would have to wait a year before their divorce would be finalized. In addition, couples would be required to take education classes about marriage conflicts and the impact of divorce before they could even file.
Source: TheDailyReporter.com, "First in Print: Why is America's divorce rate the highest in the world?," 5/23/11.
]]>Divorces are often emotionally charged on both sides of the table, so it is easy to act rashly when making decisions. As a result, there are a number of ways that divorced couples often find themselves in financial turmoil following a divorce.
Often accompanying divorce proceedings is the need for revenge. Whether you feel betrayed or simply hurt by the split, you may be tempted to run up big balances on the credit cards before the divorce is final. But don't do it. In many cases, this will backfire as the court will hold you responsible for the charges and order that you pay the debt.
]]> After a split, it is easy to think that simply because the court ordered your ex to pay a certain debt you are no longer responsible. But that is not always true. Courts can order whatever they like in divorce decrees, but they do not have the authority to make a creditor abide by that order. So if your ex defaults on the mortgage, then your credit will also be destroyed. Financial advisors recommend that you close all co-signed accounts and try to get rid of any jointly-held debts before the split is finalized.Learning to live on just one income can be challenging, but it is necessary. Following divorce, many people have to adjust their spending habits and lifestyles. If you relied on two incomes to live before, then you will have to adjust your budget and shopping sprees so that you can live on one. It also may be the case that your ex can afford to spend more on your kids. You may be tempted to try out outdo your ex in a war for purchasing your kids' affection. But before you actually buy certain items for your children, stop and question your motivation. You may needlessly run up credit card debt in an effort to unnecessarily prove your love through gifts.
Source: FoxBusiness.com, "Seven Big Post-Divorce Money Mistakes," 6/9/11.
]]>According to the U.S. Census Bureau, divorce rates among most age groups have been dropping since 1996. In 1996, 19 percent of women ages 25 to 29 were divorced, but 13 years later this percentage had fallen to 14 percent -- which, given adjustments of differences in population that is actually a drop of about 30 percent. The number of women ages 30 to 34 who are divorced has also fallen, although at a lesser rate of 20 percent.
While the divorce rate among younger women has fallen, it has actually increased among older women. In 1996, about 27 percent of 60- to 69-year-old women were divorced, compared to 37 percent of that age group being divorced in 2009.
The question is, why such a shift in the divorce rate now?
]]> It is believed that one reason for the decreasing divorce rate could be that fewer people are actually getting married. Not only are people waiting longer in life -- less people now get married in their 20s than used to -- but many of them are choosing cohabitation over marriage. In those situations, when the relationship ends there is no divorce to file. But it does not mean that there are not still challenges involved in those situations, which likely explains the increase in couples signing prenuptials in the form of cohabitation agreements.Experts also believe that marriages are becoming more stable -- largely because for many couples both work outside the home. A two-income based family has less financial troubles, and with that economic stability comes less marriage trouble.
Source: CNN.com, "Divorce rates falling, report finds," 5/19/11.
]]>First, be open and honest about money. Talk finances long before you start picking wedding colors and what kind of cake you're going to have. You shouldn't wait to discuss assets and debt and what each of your spending and saving habits are. A couple profiled in the New York Times last year actually ended their engagement once the fiancé discovered she owed over $170,000 in student loans. Issues such as that shouldn't be a surprise that late in the relationship.
Second, don't procrastinate. Handle it early. The last thing you want is a contract drawn up days before the wedding, when you're already stressed out and dealing with last minute details. Get the prenuptial agreement into place months before the wedding so that you both have plenty of time to review it.
]]> Third, set aside your emotions. By talking money early and trying to remain objective, you will be in a better spot to determine what is real and what is imagined. It is easy to get caught up in the moment of falling in love and planning an elaborate wedding - so caught up that you haven't thought through what your future might actually look like.Fourth, use tax season as an excuse to talk money. A non-threatening way to bring up finances is to talk taxes, and take a good look at exactly where each of you stand.
Fifth, be reasonable with your prenup. Remember that the goal of the prenuptial is to help plan for the future by creating an enforceable contract that clearly lays out which spouse gets what if the marriage ends. Avoid fault clauses like, "If you cheat on me, you owe me $1 million."
Last, do your homework. Marital property laws vary, depending on what state you're in. Talk to a matrimonial and divorce lawyer who can help you draw up a prenuptial agreement that best suits your goals.
Source: DailyFinance.com, "Five Tips on Planning a Prenuptial Agreement Before You Say 'I Do,'" 4/5/11
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