In Ex parte E.R.G., [Ms. 1090883, June 10, 2011] ___ So. 3d ___ (Ala. 2011) the Court found that the right of a fit parent to determine, among other things, who has contact with their child is a “fundamental”  right and therefore any law interfering with that right must pass the “strict scrutiny” test to be constitutional.  This test is the most stringent one a court applies to determine the validity of a statute and our Supreme Court held that it was not met in this case.

The question of how this ruling affects older cases where grandparent visitation has already been awarded was recently addressed in Burnette v. Burnett, [Ms. 2100935, December 9, 2011] ___So. 3d___ (Ala. Civ. App. 2011).  The Alabama Court of Civil Appeals held that a change in substantive law, such as a finding that a statute is unconstitutional, should be applied retroactively.  As a result, the court overturned a previous award of visitation to grandparents.

Interestingly, the Alabama Legislature amended the grandparent visitation statute to make it more difficult for grandparents to get visitation.  The court in Burnett mentioned this and specifically stated that they were not addressing the question of whether or not the amendments to the statute were constitutional since they were not in effect at the time of that decision.

What does this mean for parents and grandparents dealing with visitation issues?  It’s good for parents and definitely not good for grandparents.  Any parent who does not want to continue sending their child to visit grandparents can now file a motion to terminate that visitation order and have a good chance of succeeding.  Grandparents who are still willing to fight for visitation will have to rely on the recent amendments to the statute and be willing to defend the constitutionality of those amendments until our courts determine whether the statute will survive.

If you are the non-custodial parent and you have to move away from your children, then this can be the basis of a motion to reduce your child support.  That is especially true if you are going to be paid less money to work at your new job.   In that case you can request a reduction for both reasons.  Of course, anytime you are divorced and there are children involved, there is always a chance that you will have further disagreements that result in potential litigation before a judge.  As a result, documenting these extra expenses with receipts, bank records and/or credit card statements is essential to giving yourself a chance to get the judge to agree with your position.  Remember, the person paying child support is always the one that bears the burden to prove payment of support no matter what form.     

Travel costs can also be important if you are the custodial parent and you are the one that is moving.  If you notify your Ex that you intend to move and they object, litigation attempting to get a judge to allow the move can be complicated, time consuming and expensive.  Offering to reduce the child support they are paying as a way to get them to agree to the move is one of many tools you can use to settle the dispute.

It turns out she was having a Skype video conversation with her Uncle who lives in Boston, Massachusetts.  As I leaned in to view the screen I saw my brother-in-law and also saw myself in the bottom of the screen.  I waved and said hello and he did the same back to me.  Amazing!

I have had several opportunities to put provisions in agreement divorces or relocation case settlements that obligate one party or the other to have broadband connections to facilitate communications with the other non-custodial parent but this was my first personal experience with it in video form.  It really was a great way to communicate and was much better than a simple phone call would have been.

Alabama has no statutory obligation requiring a court to consider Skype or other forms of ”virtual visitaion.”  I am also not aware of a published opinion where this was required by a judge after a hearing.  However, with the economy being in the condition it is, causing both custodial and non-custodial parents to consider relocating to find jobs, the technology that allows this sort of communication can help improve an otherwise bad situation.  The technology has defenitely come a long way.  Video conversations are certaily no substitution for spending time with your children but they absolutely can help give the feeling that your children are not so far away.

If there are multiple children who are receiving support pursuant to your current order and one has turned 19,  that is a sufficient basis to modify the payor’s support.  The new order will be recalculated based on the parties’ gross monthly incomes and other A.R.J.A. 32 factors existing at that time but will not include support for the child that recently turned 19.

The article also states that an advantage to the GPS is that an owner of the vehicle can conceal it on the car.  My only word of caution about that is that the laws vary from state to state and are constantly changing.  So, before you go put a GPS on your vehicle that your spouse doesn’t know about, you should run it by your divorce lawyer first.

I appreciate the fact that his first step is to hire a divorce lawyer.  In his words, “a lawyer will be your best friend for how ever long you divorce is active.” I would only add, that the right divorce lawyer will be your friend for how ever long your divorce case is active.

Some of his other steps were included in my own series on Alabama Divorce Preparation.

Finally, I like the fact that he concludes with the important reminder for parents to never use the child as leverage in a divorce.  I see that too often, with devastating consequences.

Working Together to Resolve Divorce

The Orlando Sentinel posted an article today on Collaborative Divorce.  Collaborative divorce is an alternative way to resolve a divorce case without resorting to litigation. I was actually trained as a collaborative lawyer in 2001.  However, it has been slow to pick up steam in Alabama.  In fact, many divorce attorneys in Alabama that I have spoken to have expressed their reluctance to hanlde cases collaboratively. I think that will change.  As it becomes more common and more people find out about it, there will be a market demand for it.

The only real down side to collaborative divorce can be the expense. But, it is far less costly than a traditional adversarial divorce.

I have been working on something called the No Nonsense Divorce that I think will provide another viable option for families in Alabama trying to cope with divorce.  It is a way for divorcing couples to streamline the divorce process and to resolve their case for a fixed fee that is far less than would be incurred in litigation. I’ll be posting more about No Nonsense Divorce here as soon as we have all of the parts in place.

Until then, I encourage you to read the article linked above on Collaborative Divorce. It captures some of the same themes that I urge my clients to consider in the way we handle their divorce case.

The fact is, under Alabama divorce laws, if one of the spouses insists on a divorce, they are going to get it. There is nothing you can do to stop. You can make it take longer, and you can make it cost more money (but why would you want to?), but you can’t stop it.  I tell my divorce clients all of the time, “It takes two people to decide to get married, it only takes one to decide to get a divorce.”

Can you try to convince your spouse to reconcile? Of course. Can you try to convince a spouse considering a divorce to not file and give it another chance. Sure. I always encourage reconciliation. And, if you are struggling in your marriage, a good book to take a look at is, The Divorce Lawyer’s Guide to Staying Married. The author is a divorce lawyer and in it, she interviews other divorce lawyers around the country. Because we see so many marriages that end in divorce, divorce attorneys have a unique perspective on the issue.

But, as far as these websites that promise to stop your divorce case, I would just be careful.  A few sessions with a qualified marriage counselor or pastor will have a much better chance of being effective than an e-book slapped together by someone trying to capitalize on your desire to avoid divorce.

photo credit: raulsantosdelacamara

For that reason, I thought it would be helpful to direct you to the final article I wrote on Alabama Divorce Preparation. If you visit that page, it will show you each of the 13 Steps I outlined and includes a link so you can get more information for each one. I hope it is helpful to you.

I recently wrote an article entitled, Need a Divorce Lawyer? 9 Questions You Must Ask to Decide Whether You Need a Divorce Attorney. If you are facing divore and considering hiring a divorce lawyer, I recommend you check it out.

Alabama ranks high in divorce rates.

According to the U.S. Department of Public Health, Alabama’s divorce rate was 39% higher than the national rate in 2007.

A recent article in the Time Daily, reports that many churches in Alabama are responding by implementing Divorce care programs for their communities.  Encouragingly, the article relates that many communities are also responding by implementing programs to strengthen marriage. In my experience as a practicing divorce attorney in Alabama, that is where the focus should be.

I encourage you to read the article.

photo credit: andronicusmax

Divorce and children

Just a short note today about a nice divorce resource I found.  If you have read the Alabama Family Law Blog long, you know that I care a lot about the kids of divorce.  Having been one myself, I am always concerned about how my client’s divorce case is affecting their children.  That is why I was excited to find this divorce resource on the web.  It is an article called, A Kid’s Guide to Divorce.  It is really written to the child (probably age appropriate for middle school and up). But, even if you have younger children, you and your spouse should read the article. It may give you some insight on how your children may be thinking as your family goes through divorce.

I have mentioned it here before, but frequently the children need to be reminded that the fact that mom and dad are getting a divorce, does not mean that they don’t love the kids.  The article correctly puts it this way, “It’s really important for kids to know that just because parents divorce each other, they’re not divorcing their kids. Some kids think that if their parents are divorcing, it means their moms and dads will want to leave them, too.” These are the types of things you need to know go though your child’s head as you go through a divorce.

In Alabama, many of our schools offer what is called a Rainbows program. It is a divorce support program for children.  I have heard a lot of good things from my divorce clients about that program. If you are facing divorce, I encourage you to see if your local school offers that or a similar program and/or to consider a therapist if your child is having difficulty adjusting to the divorce.

photo credit: Pink Sherbet Photography

Under Alabama divorce laws, mediation is often ordered by a Judge. In most of the mediation cases I am involved in, both parties are represented by their own divorce lawyer, and a third lawyer serves as the neutral mediator.  So, there are some added costs there.  That being said, it is often worth it.

In a mediated settlement, you and your spouse are able to work out the agreement with the assistance of the mediator and lawyers. So, you maintain some control and have some input in the ultimate decision.  Of course, this is not the case when a Judge makes the decision in a litigated case. And, you really have nothing to lose, because if you cannot reach a fair settlement, then you can walk away and still “have your day in court.”  The only thing you would be out would be the costs of the mediation.

I like mediation. We have had many cases settle with mediation, some of which I didn’t think would going into it (it helps to have a very good, experienced mediator).  But, it is not the first thing I recommend to clients. My first recommendation is for them to try to work out their case through a negotiated settlement. Sometimes we call this the “kitchen table method.”  I explain to the client what the issues are that will have to be resolved and they work through those issues with their spouse.  It works more often than you might think. Where they cannot work trough the issues on their divorce case themselves, they can each have a lawyer help them negotiate a resolution.

I am currently in the process of formalizing a system that would help couples work through these issues. We call it a No Nonsense Divorce, and I really think it will be a smart, effective way for couples to resolve their divorce case without months of costly litigation.

But, if that is not an option, then mediation is something you might consider.  Adversarial litigation should always be the last resort, in my view. Usually the only ones who end up winning in an adversarial divorce are the divorce attorneys.

Here is a summary of the tips there:

1. Work through your grief
2. Recognize your survival mechanisms
3. Assess your talents
4. Start living consciously
5. Write your own story
6. Develop a project for the future
7. Plan for obstacles
8. Deal with the fears
9. Take incredible care of yourself along the way

Check out the link above to read the details for each step.  If you are recently divorced or going through a divorce now, it is worth a read.  The last tip is really what the entire article is about: taking care of yourself.  When I am helping a client go through an Alabama divorce, I try to urge them to take care of themselves mentally, phyiscally, emotionally and spiritually.  Often divorce attorneys are so focused on protecting our clients in their legal case, that it is easy to overlook these equally important issues of their health.  So, not only is this a good article for someone going through divorce, it was a good reminder to me, as a divorce lawyer, to not lose site of this important aspect of my client’s life.

It is one of the toughest tasks that accompanies a divorce.  How do we tell the children? I recently came across a good article that advised parents facing divorce to avoid these three mistakes when telling the children:

1. Pressuring the children to make a choice,
2. Forgetting to emphasize that the children did not cause the divorce, and
3. Sharing information that only adults should be aware of.

You can read the entire article here.  In the article, the author elaborates on each point. I want to specifically emphasize the third point.  Divorce attorneys see this mistake made all of the time (sharing information with the children that only adults should be aware of).  It is typically done when one parent is hurt and mad at the other because they have somehow been wronged.  Often it is when adultery is involved.  The parent decides to tell the children the reason mommy and daddy are getting  divorce is because “your father has a girlfriend” (or something like that).  When asked why in the world they would tell their children this, they justify it by saying, “the children deserve to know the truth” or “I was just being honest with them.”

DO NOT DO THIS. Really.  It is incredibly selfish and immature and it hurts your children.  I know there may be some circumstances where it may be necessary.  Maybe the child is 17 and the affair was with a teacher at the school and so all of her friends are going to find out (yes, I’ve seen it happen).  But, even in those situations, slow down. Check your motivation.  Are you really protecting your child by telling her?  Is it really necessary? I find that often it is not.  Don’t do it to your children.  The divorce is going to be hard enough on them.

Finally, I would add one more to the author’s list: Remind them that both mom and dad still love them. Children in divorce need to be reminded that the breakup of the marriage does not mean that either parent no longer loves them.  This is VERY important.  Even if you are the spouse who did not want the divorce, make sure they know that the other spouse still loves them and the divorce does not mean they don’t.  They need to hear that.

NOTE: The author of the article offers some resources at the end of the article to assist in telling the children about divorce. I have not reviewed them myself, but I have talked to the author in the past and I have heard very good reports about those resources.  You may want to check them out if you are facing divorce and are not sure how to tell the kids.

Take a look at the article, because although she addresses it to couples going through a divorce in Kansas, the same questions would apply in an Alabama divorce. The main point, like much of the divorce process in general is to make the decision with your head and not just your heart.  Making an emotional decision to keep the house when you will not be able to afford it in the long run could lead to devastating finanical effects.

So, as Shea notes, before making any agreements with respect to your martial home, here are some things to think about:

1. Can you afford to make the current monthly payment?
2. Do you have the ability to refinance the home solely in your name?
3. How much maintenance do you expect your home will need now, in the next year, 5 years?  Can you afford this maintenance?
4. What is your home really worth?  How much equity do you have in the home?  If you sold the home, would you come up short and have to pay off the mortgage, or would you make money?  What is the home’s value in today’s market?
5. If you are keeping the home, were you given enough assets on your side on the balance sheet to level out the division of property?
6. Will your children have to switch schools if you move?
7. Do friends and family live close by?
8. Can you rent a home of the size suitable for your family for less or will you be paying approximately the same amount in rent as your mortgage payment?

The author also recommends removing your ex’s name from all joint bank accounts and considering whether you should refinance any joint debt that cannot easily be divided between the two of you.

Here is a link to the full article.

If you read this blog in the an RSS reader, stop by the site and let me know what you think of the new look.  And, if you got bombarded with a bunch of “new posts” when we made the platform switch, I apologize.

Now, that this project is complete, I’ve got some more new things set to be released here soon.  Our book on Alabama divorce (including how to choose a divorce lawyer) is at the printer now.  We are also doing some cool stuff with educational videos on various divorce and family law topics, including child custody, child support, visitation, prenuptial agreements and more.  So, I hope you will continue to follow the blog.  Subscribe to the RSS feed, and I’ll update the site as soon as the books and vidoes are live.

In my years of divorce practice I have seen lots of lawyers handle divorce cases.  There are as many different styles as there are different lawyers.  But, I have also noticed three recurring styles of lawyer in particular.  I call them the lamb, the pit bull and the fox.

The lamb is the lawyer that just sort of goes with the flow.  They are reactive, not proactive.  They want to avoid confrontation at all costs and that means they also want to avoid going to court at all costs, even if it means convincing their clients to settle for significantly worse terms than they should.  The lamb may even be afraid to try the divorce case. He will rarely, if ever, tell his client that he should not sign a settlement offer that is being extended from the other side even if that offer is clearly inequitable.  Thankfully, there are not a lot of lambs that last very long as divorce lawyers.

Much more prevalent is the pit bull, who is exactly the opposite.  They hate to settle cases.  In fact, some of them won’t do anything proactive to try to settle their divorce cases.  It is almost as if they take some type of perverse joy in seeing the “blood running in the streets.”   The truth is that often they do this simply to develop and maintain a reputation as “Bad Leroy Brown…baddest man in the whole damn town.”  When a spouse is angry and in the emotional stage of wanting to exact revenge, they want to be the name on everyone’s lips when that aggrieved spouse asks their neighbor who is the meanest SOB in town.  And, so they work hard to maintain that reputation because it makes them a lot of money.

The sad part is that acting like a pit bull is rarely, if ever, in their own client’s best interests.  Of course, the pit bull’s main concern is not their client. If you know anything about pit bulls, you will know that they are very aggressive and vicious. But, they are not thinking animals.  They act only on instinct.  When they fight, they not only destroy the dog they are fighting, but by their own actions hurt themselves and anything else around them (which often includes their own client’s and their client’s children).

The pit bull is aggressive for the sake of being aggressive, not for any long-term benefit it brings their client.  Often people going through divorce will think they need an aggressive lawyer to represent them in their divorce.  They are wrong.  What they need is a lawyer who is assertive.  There is a difference.  It is the difference between the pit bull and the fox.

The fox is wise and cunning.  He sees the big picture.  The fox is assertive when he needs to be, compromising when it benefits his clients’ long-term best interests, and always aware of the many different consequences his actions have on his clients.  He stands on principle. Yet, he is a strong advocate for his client when it promotes his client’s long-term best interests.  He recognizes that reaching a fair settlement is always preferable to trying the case and leaving it up to the judge.  Yet, he also knows that if a fair settlement is not forthcoming, then he must be willing and able to prepare to effectively litigate the case in court.

When choosing a divorce lawyer, you should avoid the lamb and the pit bull at all costs.  Instead, find yourself a fox.

Mediation can be very effective and has successfully led to the resolution of many cases.  There are some financial costs involved.  So, if you think it may be appropriate for your case, I would get your lawyer’s opinion about whether they agree that your case is a good candidate for mediation or not.

You will want to make sure you do not change lawyers right before your court date unless you are certain that the case can be continued (or the new lawyer can be ready to try the case on short notice).  You do not want to be forced to go to trial without a lawyer because you fired your original lawyer and the judge would not grant a continuance to allow the new lawyer to be prepared.  It does happen.

Finally, you should expect that your original lawyer will have to be paid any monies you owe him before he will turn over your file to any subsequent lawyer you hire.

You may want to ask your lawyer at the conclusion of the case if she can give you a breakdown of what portion of the fee you paid her, if any, was related to tax advice or the production of taxable income.  If the case does not involve alimony or other tax issues (for example, the sale of a house or stocks or the division of a retirement account), you may not be able to deduct any of the fee.

If you have specific questions related to this issue in your case, talk to your lawyer or tax advisor.

One warning that I give all my clients is that if they request a drug test, assume that the other side will also request one of them and that the Judge will order both parties to be tested. Too frequently I have had my own clients tell me they wanted their spouse tested and that they didn’t mind taking a drug test themselves because there was no way the wouldn’t pass it. Then inexplicably (the client is always shocked) their spouse passes and they fail.

Do not put yourself (and your lawyer) in that position. In our jurisdiction the Courts are requiring hair follicle tests which purportedly are more accurate and test back farther in time. Whether that is true or not, you don’t want to test positive for drugs on the drug screen that you demanded be taken! Of course, the best advice here (particularly if custody of children is at issue) is that if you are using drugs, you don’t need to have custody of your children. Or, the converse, if you want custody of your children, do not be using drugs.

First, you need to seriously consider getting a private investigator. In Alabama “fault grounds” is relevant in a divorce case and can affect the property settlement and alimony awards. Depending on whether the children are being affected by the conduct, it may also influence the custody determination.

But, do not pull out the yellow pages and pick the cheapest p.i. you can find. You should talk to your divorce lawyer about arranging a p.i. who he knows is competent and can be an effective witness in court if that becomes necessary. (The same advice about not using the yellow pages and hiring the cheapest divorce lawyer you can find also applies!)

The second piece of advice is to immediately get tested for sexually transmitted diseases. Obviously you don’t know the sexual history of the person with whom your spouse is having an affair. Yes, I know it is an awful thought. But, I can promise you it happens. And, God forbid it happens to you, the sooner you find out about it, the sooner you can be treated. Additionally, if that were to happen, it can dramatically change the posture of your case as there may be additional legal claims that need to be brought. And, if those claims need to be brought your lawyer needs to know about it immediately.

In fact, I would not hire a lawyer that is not willing to represent you in a divorce on a fixed fee. I have a strong opinion about fixed fees vs. hourly billing. I am currently putting an article together that will go into this in much more detail, but I will speak very briefly to the issue here.

Why would you hire someone to handle your divorce case that can’t quote you a specific, total fee? Many lawyers will say they can’t quote a flat fee on a divorce because there are too many variables to accurately estimate a fair fee. That is nonsense. There are many variables involved in building a house, but when you contract to build one, there is a set price established on the front end and agreed to by both parties. If there is unforeseen work needed, a change order is prepared. Simple, effective, fair.

The bottom line is that hourly billing (coupled with the high pressure put on lawyers to bill more hours) places an incentive on a lawyer to engage in protracted litigation. That is not in the client’s best interests (particularly in the emotional turmoil of a divorce). Additionally, the client must feel like they are writing a blank check to the lawyer (because they are). Not to mention the fact that with hourly billing you are charged (usually in 6-15 minute increments depending on the lawyer) for every phone call, every e-mail, every meeting, etc. Is that any way to encourage open communication (which is absolutely necessary for effective representation)? Of course not.

I guess you get the point. My advice is not to hire a lawyer that is not willing to work on a fixed fee basis. I realize that is a controversial statement. It is one with which many of my fellow lawyers would vigorously disagree. But, I have been working on a fixed fee basis for over 10 years. I have been doing it exclusively for about 3 years. My clients love it because it takes away an unknown factor, it allows open, regular communication, and they never receive a $150 bill for a 30 minute phone call. I love it because I can focus less on tracking my time and more on resolving my clients problems (not to mention there are no such things as accounts receivable in my office).

If custody is pending, I certainly would be careful about your conduct with a “significant other.” Many judges will not find such behavior proper, particularly if the person is being introduced to the children, spending the night while the children are there, or going out on social activities with the children.

The better course of action in this type of situation is to err on the side of caution. And, if you have a question about your specific situation and what would be appropriate, talk to your lawyer before taking action that could harm your case.

For this article, I just want to focus on one thing:

Expertise – You should hire a specialist, not someone who dabbles in divorce work. The area of family law has become increasingly complex. A lawyer that tries to do a number of different practice areas cannot develop the depth of knowledge necessary to represent you in such a critical and complex matter as a divorce. The analogy to medicine is apt – if you need brain surgery, you don’t go to a general practitioner, you go to a specialist. In a divorce case, the stakes are high – you are determining what will happen to your children, your house, your retirement and your income for starters. That sounds more akin to brain surgery than to a chest cold to me.

The conversations that a lawyer and client have with one another are generally confidential. However, if another person is present during those conversations, it loses its confidentiality. That means you and/or the person that accompanied you to the meeting could be compelled to disclose what was discussed.

Additionally, it is better for only the lawyer and the client to talk so that the discussions can be more candid. The issues discussed in a divorce case will often involve some of the most intimate details of your life. You may not be comfortable discussing these in front of your friends or family members, but they are essential for the lawyer to be able to best represent you.

Prenups are generally valid in Alabama if certain requirements are met – these basically have to do with full disclosure of the assets and the availability of independent counsel, absence of duress, etc.

If all of the conditions are met and the prenup is valid, then its terms will usually govern the disposition of the assets and debts and terms of any property settlement and/or alimony.

Custody, child support, visitation, and other issues regarding the best interests of the children are generally not issues that can be addressed in the prenup and thus will have to be resolved through the divorce case (through negotiation, alternative dispute resolution or trial).

If you have a trial date that is approaching get to a lawyer immediately. Under certain circumstances, the lawyer may be able to get a continuance for you.

If you unavoidably missed a trial or hearing, talk to a lawyer to see if you can have the default judgment set aside. In the jurisdictions in which I practice, my experience has been that the judges would prefer not to enter deaults. So, they will often consider giving a litigant a second chance to present evidence, if there was a legitimate reason for missing the court date and/or the issues that were decided in the default judgment were critical (such as child custody, alimony, etc.) But, time is essential here. A motion to set aside a default needs to be filed as soon as possible, and in many instances, it must be filed prior to the expiration of 30 days from the date of the entry of default.

I won’t get into the distinction of fault grounds vs. no fault grounds in this post (that’s a subject I’ll deal with more extensively in a post of its own), but Alabama does consider fault in making determinations related to the property settlement and to alimony. Of course, in a contested custody case, a parent’s conduct is also important. So, there are reasons that this evidence can be extremely valuable. For example, having evidence of adultery from the p.i. can give you a great deal of leverage in negotiating a settlement.

If you do change the locks without a Court Order giving you possession of the home, not only will the Judge not be happy about it, if your spouse were to “break in” he or she would not be in violation of the law. Changing the locks when you don’t have Court ordered possession of the home is generally not a good idea and is a good way to escalate the case to a more adversarial (and therefore more expensive) posture. If you are thinking about doing so, you should talk to your lawyer about it first.

Where custody is not disputed, it still may not be a good idea. Many people tell me they are afraid of being guilty of abandonment if they do move out. That is not really the issue. In Alabama for a court to grant the divorce on the grounds of abandonment, then the period of abandonment must be at least 12 months.

On the other hand, if the case has to be litigated, the earliest one can expect to get to trial in the jurisdictions in which I primarily practice (Mobile and Baldwin counties) is 3-4 months. However, it is not unusual for a case to be reset from that initial trial setting for various reasons. I generally tell my clients they can reasonably expect it to be resolved in 6-12 months if a trial is necessary.  Occasionally we can get it tried quicker than that and rarely does it take longer.
The length of time it takes to get to trial is just one of several reasons that I encourage my client to try to resolve their case by reaching a fair settlement, if that is possible (sometimes it is not -such as when the opposing party or lawyer is unwilling to work towards a fair settlement in good faith).

Unfortunately, you cannot stop the divorce. As I tell my clients, it takes two people to decide to get married, it only takes one to decide to get a divorce. The party that does not want the divorce can make it take longer, and cost more, but they cannot force the other party to stay married to them. You can encourage them to reconcile, and invite them to attend marriage counseling with you, and sometimes this will result in a change of heart and a reconciliation. But, unless your spouse is willing to do this voluntarily, you cannot force them and the divorce will happen – at that point is becomes a question of when and under what terms.

I have often heard it said that divorce is the second most difficult event in a person’s life (surpassed only by the death of a close loved one). The end of marriage always comes with many concerns, questions and often the fear of the unknown. One of my goals with this blog and the way I work with my clients in my practice is to try to educate them as much as possible – to take away the fear of the unknown in order to help reduce the pain of divorce.

It is with that goal in mind that I will begin this regular series of posts designed to answer common legal questions that I am often asked by those facing the possibility of divorce. If you have any questions you’d like me to consider including in the FAQ feature, feel free to e-mail them to me from the contact us page.

Collaborative divorce is an alternative way for divorcing spouses to resolve their disputes without going to court. Although it is a relatively new approach, having only originated in the early 1990’s, it is quickly spreading throughout the country. The latest estimates are that there are approximately 200 different groups of lawyers that have joined together in associations to promotre and practice collaborative divorce. It seems like this might be an idea whose time has come.

For those of you that have had personal experiences in the collaborative divorce model, I welcome your feedback by direct e-mail or in the comments section. I am currently involved in a project to begin a collaborative divorce practice group in Alabama. As information on that effort develops, I will post about it here.

Schedule a consultation appointment with the lawyer. This will give you an opportunity to evaluate how you are treated by the staff and will give you some time to interact with and interview the lawyer. After spending thirty minutes to one hour with the lawyer, you should have a good feel for whether he or she is the right lawyer for you. One factor that is often overlooked is whether a lawyer’s personality compliments yours. You divorce lawyer is someone with whom you will be sharing many intimate details of your life as well confidential financial information. He or she must be someone with whom you are comfortable and whom you trust.

I’ve included the questions to ask the lawyer in my upcoming book on Alabama Divorce.  I will post an update here on the blog when the book is printed.

Researchers found that people who had a disruption of marriage, like divorce or death, were in worse health than those who remained married.

Here is a link to the story.

One word of warning though – one of the suggested steps is to close joint accounts. This can often be a good idea, but many jurisdictions in Alabama enter a standard Pre-trial Order of Court in every divorce case which expressly prohibits either party from closing joint accounts. So, before you do so, make sure you consult with your lawyer and that you understand any outstanding court orders that may prevent you from taking the proposed action.

Thanks to fellow divorce law blogger, Stephen Knight for the tip.

The brief article addresses two different views of divorce held by researchers on the effects of divorce on children. Elizabeth Marquardt takes the position that parents should fight harder to save their marriages because of the effects that it has on children. On the other hand, Vicki Lansky emphasizes that what is important is the way the parents’ divorce unfolds, not the fact that the divorce itself occurs. Both have authored books on divorce.

More smart, less emotion. I know it is easy to say and hard to do, but it is the key to reducing the pain and expense of divorce.

I also found this nugget of statistical information that I had not heard before: Average length of a first marriage that ends in divorce: 8.2 years for men, 7.9 years for women, according to the Census Bureau. The eight year itch, I guess.

The article does contain some nuggets of wisdom so I offer it for your consideration. But, also consider these two caveats: (1) some of the advice is specific to Indiana law (for example the tip that says “fault” does not play a part in the property settlement – it does in Alabama), and (2) some of the tips are brushed with too broad a stroke – which is a nice way of saying I don’t agree with them. Specifically, one of the tips states that Guardians Ad Litem (lawyers appointed to represent the children in custody cases) typically side with the mother in custody actions. It is my experience that in Alabama, most GALs look at what is in the best interests of the child, and do not enter cases with an automatic bias based on sex.

The article is worth a read. Among my favorite of their tips: immediately get a credit repor where I described how to obtain a free copy online), pick your battles wisely, and try to shield the children from any ugliness that emerges.

Unfortunately for the parties, by then the value of the account had been reduced from $77,000 to $43,000 due to market fluctuations. The question was should the wife get 1/2 of $77,000 or 1/2 of $43,000? Who should bear the loss in value that occurred between the time of the divorce to the actual division of the accounts? The Appeals Court found that each party should share the market loss, which meant the wife would only get 1/2 of $43,000. The net result is that she lost $17,000 because a QDRO was not immediately prepared to divide the account.

Also, if you want more in depth information, go to www.irs.gov and download publication 504, the tax guide for Divorced and Separated Individuals. Or you can access a pdf version here.

However, what most of my clients do not realize is that even if their spouse if agreeing in the divorce to pay the debt, they still have financial exposure. They often do not realize that the Divorce Decree’s provisions about who is responsible for the debt does not and cannot alter the underlying debt. The credit card company, bank, or other creditor is not bound by your Divorce Decree.

When you claim the “innocent spouse” defense, you argue that you did not know and had no reason to know about any under reporting of income or other wrongdoing associated with the filing of the return and that therefore you should not be held responsible for paying any additional taxes, penalties or interest due.

According to the article the IRS has taken a renewed interest in enforcement, due in part to growing concern of the budget deficit. The article sites a recent report that states that of the nearly 50,000 innocent spouse claims received by the IRS in 2005, only 21% were allowed in full and another 8% were partially allowed.

The moral to the story: if you have even a hint of impropriety, do not sign a joint return. As a divorce lawyer, I would also add that if a divorce is imminent then before signing a joint return, talk to your lawyer about the implications first.

Note: I would link to the Wall Street Journal story but it is not available on wsj.com without a subscription. If you are a subscriber and have acces to the Journal online, you can go to the above link and do an article search for “Innocence in Tax Fraud” and it will pull up the article.

Also, you can download the IRS publication describing and explaining Innocent Spouse Relief here.

The Notice applies to eleven Alabama counties, including Baldwin and Mobile counties. If you are considering utilizing this option, contact your tax advisor to make sure you qualify and that you properly “self identify” as a Katina victim as required under the Notice.

My suggestion is to take 25% – 30% of each alimony check received and put it in a separate “tax account” to be used only at tax time to pay this obligation. I also recommend considering an ING Direct online account for this purpose. This account is currently paying 4% APR, which is better than most bank checking or savings accounts, and the money is liquid. Additionally, you link the ING account with your normal checking account and it is easy to make transactions into and out of the account online.

Also remember that if you want more in depth information, go to www.irs.gov and download publication 504, the tax guide for Divorced and Separated Individuals. Or you can access a pdf version here.

If you have any questions about the implications your divorce case will have on your tax situation, discuss it with your CPA or tax planner. The time to have that conversation is before the divorce is finalized.

I set out here the list of steps to consider in its entirety for easy reference:

1. Find a wise guide

2. Make an accounting of the family finances

2A. Determine what you own
2B. Determine what you owe
2C. Determine income (yours and your spouse’s)

3.  Make photocopies of the financial records

4.  Prepare a budget

5.  Document and safeguard personal property

6.  Establish your own credit

7.  Assess the financial accounts

8.  Address the credit accounts

9.  Avoid additional debt or major purchases

10.  Stay put

11.  Keep a diary

12.  Consider a private investigator

13.  Be good

Well, we have finally reached the last step in this series of posts on practical steps to consider when you may be facing divorce.  I will wrap up the series with two more posts to conclude and summarize the series.  But, first, the final step which may seem a bit silly.

It is simply this: Be Good.

Here is the principle: you are about to be under a microscope.  You are reading this blog, so I assume that you may be facing a divorce and you’d like to that unpleasant process to be as amicable as possible.  Unfortunately, that is not always possible.  Your spouse may not share that objective for some reason.  They may be influenced by others (lawyers, friends, etc.) that convince them that what you are offering is not fair.

So, there is a chance that your case will end up going to trial no matter how diligent you and your lawyer are about trying to work the case out fairly and quickly.  That being said, you should not put ammunition in the gun for your spouse to use against you.

That means no dating, no carousing, and no partying. If custody may be an issue it means making the children your number one priority (they should be that anyway, right?).  Even things that are perfectly legal and harmless any other time can be twisted to look suspicious or worse in the hands of your spouse’s lawyer.

Suppose for example that you go out for dinner and drinks with members of the office to celebrate a fellow employee’s birthday.  This sounds harmless enough.  But, in a custody case these questions may be asked: While you chose to go out drinking with your friends, your spouse was at home taking care of the children, correct?  Are you having a romantic relationship with Joe/Jane who was also at the party?  How many drinks did you have that night?  This is something you routinely did during the marriage, isn’t it (i.e. choosing social events over your family)? You drove home that night under the influence of alcohol didn’t you? Etc.

You get the point.  This is a silly example, but why even open yourself up to this line of questioning.  Don’t put the judge in the position having to decide whether you are telling the truth that this was a harmless and isolated event.

Spend time with your kids, work, stay around the house, exercise, and attend to your spiritual life. Be above reproach.  Be Good.  Come to think of it, Its not bad advice whether you are facing divorce or not.

We continue our series on practical steps to consider when you are facing an imminent divorce.  We are now on to Step 12 – Consider hiring a private investigator.

Alabama law does consider “fault” when deciding how to divide property in a divorce.  Additionally, depending on the facts, adultery can affect custody determinations.

If your spouse is committing adultery, then you are better off having proof of it then not.  This is the case even where you fully intend to settle your case.  In fact, often having proof of an affair is what gets the case settled at terms that are fair to you.

It is not fun to find out your spouse has cheated, and you may be like many of my clients who have said they would rather not know.  But, you should think carefully before making that decision.  Talk to your lawyer.  Assuming you’ve chosen a good one, listen to their advice.  If you are going to get proof of it, now is the time.  Your lawyer should be able to talk to you about the costs involved (it is not cheap) and how to improve your chances of making the surveillance effective, should you choose to go that route.

This post continues are series on practical steps to take when a divorce is imminent.  We are now on Step 11: Keep a diary/calendar.

It is important to documents all of the major events that occur until the divorce is final.  Your lawyer will likely want your help in reconstructing a chronology (a list in order by date) of the major events that led to the filing of the divorce.  Additionally, you should begin keeping careful records of new events and incidents as they occur.  Simply note the date, what happened and any witnesses that may have observed it.  In the unfortunate event that your case drags on, events will begin running together and your memory may fail you.  Don’t rely on it.

Instead, keep an ongoing diary.  Then provide this to your lawyer periodically so he is aware of any significant facts in your case.

I should note that you really should discuss this recommendation with your lawyer before implementing it.  Some lawyers may not want you to have an ongoing record like this because it could be obtained by the other lawyer during the discovery phase of the trial (something that could have a negative effect on your case).  Or, they may want you to take certain steps to attempt to protect it from begin discoverable by the opposing lawyer.  These are technical legal issues beyond the scope of this blog.  Suffice it to say that you need to talk this over with your lawyer first.

We are nearing the end of our series on practical steps to take when you are facing an imminent divorce.  We have reached Step 10 – Stay Put (until further notice).

One of the most common questions I am asked by my clients is whether they can move out of the house.  In most cases my answer to them is to stay put.  It is not the answer most of my clients want.

I know that things are stressful.  I know that they will likely get worse before they get better. Unfortunately, there are several reasons to avoid leaving. The most important ones are the following:

1.       It could jeopardize your custody claim.  If you end up in a custody dispute, then if you leave the house and the children remain there with your spouse you will almost guarantee that you will not receive primary custody.  If the case becomes contested, it could drag out for many months (even a year or two).   If your spouse has had primary physical custody that entire time and you’ve had alternate weekend visitation, then unless your spouse has made major mistakes in the interim, they will likely maintain primary custody.

2.       It could affect your property interests.  You’ve moved out.  Your spouse pays the mortgage the entire time the case is pending.  Some judges may factor that in when making the property division.

3.       You will lose leverage in the negotiations. This is big.  You want the divorce.  Your spouse doesn’t.  You decide you have to get out of the house.  You move to an apartment and are paying your rent and the home mortgage.  Now under the Pre-trial Status Quo Order you may be required to keep paying it as long as the case is pending.  You have just given your spouse a major incentive to drag out the litigation.  I see it happen all the time.  Eventually you decide to settle for much worse terms because you can’t keep paying for two households.  Do not make this mistake.

Moving out of the house can have dramatic effects on the case.  Do not do it without discussing it with your lawyer and giving it a great deal of thought.  You should know, also, that some judges will consider a motion for temporary possession of the residence pending the trial.  This varies dramatically from county to county (and sometimes even from judge to judge) so you will want to discuss it with your lawyer.

It goes without saying that if domestic violence is an issue, then all of this is moot.  You will need to take whatever steps you must to protect yourself.  Just make sure you let your lawyer know what is going on.  In the case of domestic violence, your lawyer may actually be able to have your spouse removed from the house.

We continue our series on practical steps to take when you are about to face divorce.  We are now to step 9 which is simple, but important:

Avoid additional debt or major purchases.

This suggestion goes hand in hand with assessing how to handle the credit accounts, but deserves its own separate mention.  If a divorce is going to happen, you want to be conservative with the finances.  It is not time to be putting in a pool, buying a new car, or buying new furniture on credit.  You want to simplify the financial situation not make it more complex.

When the divorce occurs, one of the primary things that has to happen is for the divorce court to allocate who will be responsible for what debts.  Generally speaking, the less complex the debt situation, the easier task that will be.

I should note again, all of this is general information.  Your own specific situation may cause you to need to vary from it.  For example, there are times when you may have to get an automobile and it would be better to do it before the divorce because you won’t have sufficient credit on your own after the divorce.  So, obviously you will want to get specific advice from your own lawyer – which is why Step 1 was find a wise guide (an experienced, competent divorce law specialist)!

We pick up with Step 8 in our series on practical steps to take when a divorce is imminent.  Step 8 is Assess how to handle the credit accounts.

If a divorce is imminent you do not want to be liable on any accounts on which your spouse has charging privileges.  It is not unheard of for an angry spouse, upon learning of a divorce, to go on a shopping spree.  Likewise, some lawyers may advise their clients to take out cash advances on joint cards to provide a cushion while the divorce is pending or to charge a large amount in lawyer’s fees on to joint cards.
You will want to consider canceling such joint accounts or at least reducing the spending limits.  If they are an authorized user on charge cards in your name, see what steps the credit card companies require to remove them as an authorized user.

Also consider home equity lines of credit. You may need to consider whether you should close it or restrict access pending the resolution of the divorce.

Whatever you do, do not neglect thinking seriously about how to handle this issue, and discuss it with your lawyer before making a final decision.

We continue with our series on steps to take when divorce is imminent.  We are on to Step 7 which is Assess the Financial Accounts.
If you’ve completed the prior steps in this series, then you already know what accounts exist and what the balances are. You need to make a decision about what to do with them.

It is an unfortunate reality that one of the first things that some spouses do when they learn/decide a divorce is imminent is to raid the accounts. This is typically done after receiving particularly bad advice from an adversarial lawyer or a well meaning, but poorly informed friend.

In a perfect world neither party would touch the financial accounts except to pay normal household bills until after the divorce is over. However, if this was a perfect world, you would not be reading this blog, and I would be in another line of work because divorce lawyers would be unnecessary.

That being said I do not recommend that you clean out the accounts. Doing so immediately escalates the conflict and stress of divorce.   It also will not be well received by the divorce judge.

So, you don’t want to clean out the accounts, but you want to be protected from your spouse cleaning them out.  If you have a reasonable fear that your spouse will raid the accounts, the only reasonable solution that I know is to remove one half of the funds from the accounts and put them in a new account in your own name.  Do not hide, dispose, or waste the money.  Document carefully where every penny is spent because you will likely need to make an accounting of it later in negotiations or at trial.  Additionally, you should not do this for the regular checking account out of which the household expenses are paid unless there is a substantial balance in the account over and above the amount needed for paying the current month’s bills.  You do not want to take action that would cause checks to bounce.

I don’t make this as a blanket suggestion.  If the money can be kept there and neither party remove it, that is preferred.  Another option for certain types of accounts is to put a freeze on the account.  Obviously that is only practical for accounts that are not regularly needed to pay bills and regular expenses.

Before you decide how to handle your financial accounts, consult with your lawyer.  If they are suggesting you go take all of the money out without a good reason, I would seriously reevaluate the whether that lawyer shares your desire for a civilized divorce.

We are now on to the sixth step in our series on preparing for divorce.  The sixth step is: Make sure you have your own credit established.
If you do not have your own credit history, you should begin the process of establishing it now.  Obtain a gas card and a credit card.  You will need to have your own credit established after the divorce.  And, the sooner you begin the process the better.  So, don’t wait until after the divorce.  You can start this immediately.

Once you’ve obtained the accounts, you can imrpove your credit by using the cards and then paying them off each month.  At this point, it is important that you use these cards only to the degree that you can pay them off each month. Your goal is to establish a favorable credit history, not to run up a bunch of debt.

The fifth step in our series on preparing for divorce: Document and Safeguard Personal Property.

Inventory and photograph your household furniture, art, jewelry and other items of value. Inventory and photograph the contents of any safe deposit box or family safe your family may own. Also, photocopy any important documents in the safe or safe deposit box (if you did not already do so when collecting the financial records).

It is unfortunate, but often these documents and property will “disappear” once the divorce process starts so get your proof in place now.
Additionally, you may want to consider safeguarding any items of particular value (either monetary or sentimental) which are small in size. I am referring primarily to things like the jewelry your mother passed down to you, your father’s fountain pen, your high school year book, your childhood photo albums, etc.  Your spouse may not share your desire to divorce with dignity.  Better to safeguard those items that are particularly difficult to replace.

Note that I am not suggesting you empty the house of its contents. That is a sure way to escalate the divorce and guarantee that you will not have a civilized divorce. Things like dvd players, camcorders and laptops can be replaced. Just document those on your inventory and photograph them for proof in the event it is ever needed.

The next step in preparing for divorce is to make two budgets (one that shows the situation in the house before the divorce filing, and one that is your estimated budget for after the divorce).

Most folks don’t like to prepare one monthly budget, so I know I’m asking a lot to suggest that it is helpful two prepare two of them.  There is a method to the madness though.  It is important to know what it costs to run your household currently.  Equally important is to have an understanding of what your costs of living will be after the divorce. Let’s take each in turn.

A. Know your current monthly budget

Knowing the monthly budget is important for the following:

1. In an alimony case, it is critical to show the standard of living and the financial need.
2. It is helpful in assessing specific needs of the children that may not be covered in basic child support (e.g. particular medical needs or private school expenses).
3. It will help you in planning your post-divorce budget.
4. If your spouse is self employed and under reporting his income, showing that monthly expenses exceed what they claim they make can show they are attempting to hide their true income.
5. A judge may utilize this information to determine temporary support while the case is pending.
6. You should know this stuff in order to properly manage your finances whether you are getting a divorce or not!

B.  Make an estimated budget of post-divorce expenses.

This is important for your personal planning and will likley influence your objectives in the divorce negotiations. You need to know what you will need financially in order to evaluate your settlement options or what you will ask the judge for in a trial.

This will undoubtedly take some estimating on your part. But, that is why it is called an estimated budget. It will be a work in progress. The point is to give some forethought to what your living expenses will be as you start the new chapter in your life.

C.  How to make your monthly budgets.

If you already maintain your checking account records on a software program like Quicken then the process is easy. You can simply print out a monthly budget report. If you don’t then you will need to sit down and look through your check register and/or your spouse’s check register for the past three months. This will reveal the expenses you may monthly and quarterly (divide the quarterly expenses by three and enter them in the budget as a monthly expense).

You will then want to think about any annual or semi-annual expenses you may have such as for life insurance, homeowner’s insurance, etc. and convert those to a monthly figure and enter it on the budgets also.

In setting out your budget, try to be as realistic as possible. You should be conservative in your budget (meaning don’t understate the expenses and end up stating a budget that doesn’t realistically meet your needs) without grossly overstating the budget (which a judge would frown on should the case go to court). It is admittedly a fine line. The best advice is to base it on as real numbers as possible.

Continuing our series on practical steps to take when it becomes obvious that divorce is imminent, we are now on to step 3.  Step 3 is simple, but important.

Step 3 is to make photocopies of all of the pertinent financial documents.

As you gather the important financial documents, you should make two copies of each of them.  One is for you and one if for your lawyer.  Keep your copy in your divorce notebook or file folder.  It is important to keep a list of what documents you have, what documents you still  need, and which of them you have given to your lawyer.

Each case and each lawyer may require a unique set of documents.  But, some of the common ones will include at least the following basic ones:

• Income tax returns for at least 3 years;
• Most recent pay stub showing year to date income;
• 12 months statements on every financial account (including retirement accounts);
• 12 months statements on every credit card or line of credit; and
• Deeds for all real estate owned by either party individually or jointly.

Your lawyer will need documentation showing your income (if you work outside the home) and the income of your spouse. This is important for a number of reasons, but primarily for child and spousal support.

If your spouse is a salaried employee then your job is easy. Obtain a copy of the most recent pay stub and the most recent Income Tax Return. If you do not have access to either of these, you can obtain a copy of the Income Tax Return by requesting it from the IRS.
Complete Form 4506, Request for Copy of Tax Return and mail it to the IRS address in the instructions along with a $39 fee for each tax year requested. Copies are generally available for returns filed in the current and past 6 years. You can download the form at www.irs.gov.

If your spouse is self employed, then the job of determining their income becomes much more difficult. This is why discretion about your divorce plans is important. You may want to discreetly question your spouse (or if he has one, his business partner or his partner’s spouse) about income. You can attempt to get copies of bank account statements and financial statements of the business.

Another good way to prove income and assets of a self employed spouse is to obtain a copy of a loan application or net worth statement that they may have submitted to a bank or other lending institution for a loan.
Sometimes it is difficult to prove the actual income of a self employed spouse. At this point, gather the information you can. In the case of a self employed spouse, your lawyer will likely have to help you by using the discovery process to obtain and analyze additional information.

We are still on Step 2 of Preparing for a Divorce.  Step 2 is “make an accounting of the family finances.”  We’ve discussed determining what you own.  This step requires you to determine what you owe.

You will need to make a determination of all of the debts of the marriage without respect to the name in which it was incurred.The Judgment of Divorce will need to address who is responsible for the debt whether it is in your name, your spouse’s name, or joint names.

I recommend that each of my clients obtain a copy of their credit report.  This allows you to make sure that you know of all of the debt that is in your name.  It is not unusual for a spouse to have incurred debt in the other spouse’s name without their knowledge.  If that has happened, you need to know it before the divorce is final, not after.

There are many ways to obtain a copy of your credit report.  You can request a free copy once per year at www.annualcreditreport.com.

Once you see what all debt exists, obtain copies of the statements on these accounts to determine the balances.  You may also need the statements if your spouse has made large or inappropriate purchases on the cards.

If you cannot find credit card statements on each of the accounts, contact the credit card company directly and request they send them to you.  You may want to check their websites as you might be able to make the request online.  I normally want my clients to get a minimum of 12 months worth. Check with your lawyer to see what he recommends.

We are on Step 2 in our series regarding preparing for divorce.  Step 2 involves making an accounting of the family finances.  This includes determining what you own.

For some, that may be easy.  If you have a good handle on the family finances, then you are a step ahead.  If not, then it is time to do your homework.

Many of the assets of the marriage will be obvious – the home in which you reside, financial accounts, vehicles, recreational vehicles, etc.  Others may not be so obvious – these include things like artwork, bearer bonds, a spouses deferred compensation, proceeds from a pending lawsuit, etc.

Then there is the possibility that your spouse is hiding assets (this is more likely if they are the ones initiating the divorce or if divorce has been discussed previously).

Review all possible assets.  Attempt to gather documentation regardign each one including present value, where possible.  Especially look for any recent appraisals of real estate.

If your lawyer is charging you hourly, then any of this information that you are able to gather should save you a lot of money.  If there are documents you are not able to obtain, your lawyer may have to get them through the discovery process.

The next thing you will want to do is to gather as much information as you can in order to get a clear picture of your family’s financial situation. You may already have a firm handle on this, if you are the one that takes care of the finances in your home. On the other hand, you may have no idea what you and your spouse own or owe.

One of the primary functions of the divorce process is to make a division of the assets and debts of the marriage. In order to get a fair division, you must know what there is to divide.

This is a three step process:

A.      Determine what you own.
B.      Determine what you owe.
C.      Determine income (both yours and your spouses).

I will cover each of these in more detail in subsequent, separate posts.

Step 1: Find a Wise Guide

An experienced divorce lawyer I know is fond of telling his clients that you don’t need a lawyer to get a divorce, but you need them for the consequences of your divorce. He is right. You can likely get a divorce by finding some forms on the internet or hiring a lawyer that advertises for cheap uncontested divorces. If you have no children, a marriage of only a year or two in duration, no assets or debts have been accumulated during the marriage, and you and your spouse agree on everything, then you probably don’t need a divorce specialist.

Look for a lawyer that has at least 5-10 years experience practicing primarily divorce and family law. Find out the lawyer’s philosophy regarding litigating cases versus settling them. My personal opinion is that you should want a lawyer who makes it a priority to attempt to acheive a fair settlement for you, but who is capable and willing to litigate the case before a judge.

The rather crass title of this post is the actual bumper sticker of a local divorce lawyer.  But, in this story, the husband’s divorce wasn’t twenty grand – it was $184 million!  It is reportedly the highest divorce award in history.

It reminds me of a New Yorker cartoon I once saw.  In it a lawyer sits across from his female divorce client and tells her, “Some people say you can’t put a price on a wife’s 27 years of loyalty and devotion.  They are wrong.”  In this case, it was a high price indeed.

Here is a post he recently made where he found a nice Divorce Checklist which contains a  general list of issues that should be considered in resolving a divorce.  The list includes:

1. Custodial arrangements for the children
2. Visitation/parenting time
3. Child support
4. Medical, dental, hospital, pharmaceutical, and psychological expenses for the children
5. COBRA or medical insurance for a former spouse for up to 3 years from the entry of the divorce judgement where applicable
6. Income tax exemptions regarding the children — who will claim them
7. Alimony/spousal support
8. Property division
9. Division of real estate, transfers, and deeds
10. Making sure that all investments are covered including limited partnerships, stocks, bonds, and savings
11. The handling of debts
12. Pensions, IRA accounts, 401K transfers, Qualified Domestic Relations Orders
13. Personal property including furniture, furnishings, art, and collectibles
14. Motor vehicles, including trailers and boats
15. Income taxes whether there can be joint filings and liabilities for payment of taxes
16. Bankruptcy issues, protection in case one spouse does go bankrupt
17. Proper security and protection regarding property division
18. Clauses to hold the other spouse harmless and indemnification in case someone fails to live up to his or her obligations
19. How to handle the discovery of hidden assets
20. Spouse abuse and restraining orders
21. Restoration of a prior maiden name
22. Life insurance policies as protection for child support payments, alimony/spousal support payments, and/or property payments in the event of death
23. Attorney fees and/or mediator, accountant, and other expert fees and payment of same
24. College education for children and/or spouse
25. Provisions for review in certain circumstances such as with regard to child support and/or spousal support.
26. Clauses such as payment for summer camps and/or religious training and/or upbringing or other special situations involving children

Following are four recommended books for fathers dealing with the difficult issues of divorce. Whether you’re in the initial stages of divorce, dealing with the immediate aftermath or well past one, these books will provide down-to-earth ideas and strategies you can use to remain an integral of your children’s lives.

Always Dad: Being a Great Father During & After Divorce by Paul Mandelstein, a divorced father of three and founder of the Father Resource Network.

More and more, divorced fathers are finding out that, rather than being one half of a “broken” home, they can continue to play a crucial role in their children’s lives. You can, too. Turn to Always Dad and discover how to work with your ex to create a fulfilling extended family, one that can help ensure that your kids grow up in an enriching, loving environment.

Live-Away Dads: Staying a Part of Your Children’s Lives When They Aren’t a Part of Your Home by William C. Klatte, a psychotherapist, social worker, and divorced father of two grown daughters who lived with their mother. Klatte begins by advising fathers to take care of themselves, including dealing with anger and depression, good advice for anyone coping with a major life change. He stresses the importance of staying involved with your children despite personal difficulties or the challenges of working with their mother. Later sections deal with cooperation, using the court system, developing parenting skills, and finding support groups.

The Divorced Dad’s Survival Book: How to Stay Connected With Your Kids by David Knox, a divorced father of two. With hands-on “get you through it” plans to help fathers remain positive, involved parents, and personal stories from a variety of home fronts, this invaluable guide illustrates how men can best develop their fathering skills, stay involved with their children, and honestly evaluate their own capabilities as fathers and ex-spouses.

1. What behavior of clients still surprises you?
That couples who did not get along during their marriage expect a divorce judge to suddenly make them cooperate with each other.

2. What determines how fast a divorce can be obtained?
The psychological point the parties are at. Some are ready to end it, get on with their life. Others use the process as a catharsis to re-live their entire marriage, vent their frustration and assert blame.

3. What is the best advice to give to a non-custodial parent?
Be polite and kind to the custodial parent. They control access to your children. Regardless of your visitation, the custodial parent has tremendous control. You may be rude behind their back but never to their face. It’s a game you need to learn to play well or you could lose something greater than your pride.

4. What is the best advice to give a custodial parent?
Let your ex have the children as much as they will take them. You need a break. They are the perfect babysitter. You know they will take care of them and if they are around the children alot, they will be more sensitive to their needs.

5. Does joint custody work?
It can. Some people are naturals at it; others need a little help. A child psychologist can help those who don’t realize they have damaging behavior. Putting the child in the middle and parental alienation are classic problems in joint custody.

6. What is the worst fear of most women?
That their spouse will fight them for custody.

7. Do most men fight for custody?
There are two categories of those who do: Men who honestly want custody. Men who want to scare their wives into accepting less child support provided they later relinquish the fight.

8. How can you tell the difference?
From the obvious. Those who never spend any time with their children prior to the divorce being filed; those who travel and are never home; those who have girlfriends. These guys don’t want custody.

9. Any way to control those who are insincere?
For the ones who are just using custody as a fear factor, you should call their bluff. Offer them custody and watch them run.

10. Does guilt play a part in the outcome of a divorce?
Yes. Usually the party that seeks the divorce is willing to take less. Men who want the divorce and have children are willing to pay more support and often give up the house to the wife and children.

11. Does mediation work?
If you have an experienced mediator, you can usually resolve some of the issues. The mediator’s experience should match the sophistication of the parties.

12. As an attorney, what do you learn from the mediation even if the divorce doesn’t settle?
It’s a great way to evaluate opposing counsel and their client. Most clients and attorneys reveal the strength of their case at mediation because they are trying to influence the mediator. It’s a great way to find out everything that is going to be presented against you at trial. It is also a good way to find out what the opposing counsel knows about your client.

13. As an attorney, can you influence a mediator?
Usually, but you should do this when you are alone with your client and the mediator. You can ask the mediator to present issues a certain way. They will hold any information confidential that you ask them to. You can explore all types of settlement offers to find the give and take.

14. Is it advisable for the attorney to be aggressive at mediation?
I think you should save your best arguments and evidence for the Judge. Their opinions are the only ones that matter. If the opposing side hears damaging evidence prior to the trial, you can bet they will have a good prepared response when they hear it at trial.

15. Does the personality of the parties influence the Judge?
Yes. I like to find out what question I need to ask to make their spouse mad and that is the first one I ask.

16. How do you prepare your client for trial?
I prepare and go over their questions and answers in advance. That way they know at least 50% of what is going to happen.

17. What is the best advice you can give your client in the courtroom?
The judge determines everything. Although the judge doesn’t ask the questions, you should look at the judge when you answer. It is his courtroom. Get him involved. Read the situation. If he looks bored or disinterested, make your answers short. Be respectful. Don’t argue with the opposing attorney and never, never argue with the judge.

18. What practical considerations should a party consider when testifying?
The judge makes a decision based on a very limited view of the situation. In doing so, perception becomes reality. If one witness is better organized, more articulate, the judge can understand their testimony. For someone to make a decision, they have to be able to understand the facts. Unorganized testimony is difficult to follow. Also. perception gives credibility. Witnesses who are neat and clean and speak in an even tone without anger or bitterness are received as more truthful. Arrogance is a certain loser. Create advantages. If no one believes you, your evidence and testimony loses its importance.

19. Can you tell us if there are any tactics opposing counsel use that in your opinion have been unnecessary?
When they refuse to concede they are wrong and force the issue before the judge. These include filing a petition in the wrong county; asking for the non-custodial parent to pay for college when the law does not provide that they have to; denying their client had an affair when the client has had a child with their girlfriend/boyfriend; asking for support which exceeds the non-custodial parent’s income; demanding personal property for their client which was the pre-marital property of the opposing party; asking for half of spouse’s retirement when 75% was accumulated prior to the marriage; demanding visitation with their spouse’s children by a prior relationship. The list can be endless.

CLOSING THOUGHTS: I am assisting people at a very difficult time in their life when they are called upon to make major decisions when they are not emotionally prepared to make them. I try to give them a sense of control over a situation that appears out of control. I try and give them feedback on how their behavior will be perceived to the Court and suggest directions which reflects more favorably on them. I strive to narrow the issues to the best settlement possible so they can determine if it’s a settlement they can live with or whether they would rather take their chances with the decision of the Judge. Often times, a Judge will be more fair than the person you have been married to.

ORIGINAL SOURCE: DivorceNet

Houston divorce lawyer, Shannon Cavers, recently posted an informative article on this subject here.  Like Shannon, at the initial consultation we ask our clients for a spouse safe e-mail and mailing address.  It is so simple to open a yahoo or hotmail e-mail account for free, that you should consider opening one for this purpose.  In doing so, make sure that you use a password that they will not guess and that is unique to this account.

Here is a summary of their points:

1. Trying to keep the house no matter the costs.  Many couples scrambling to obtain a divorce settlement wish to keep the house at any cost. However, financial experts say that more attention should be given to who can afford to maintain the property, pay the mortgage, and manage the taxes. While it is possible to ask for spousal support to help make the mortgage payments, unexpected maintenance costs may pop up, and make home ownership more of a liability than a luxury.

2. Failing to get a clean financial break from your former spouse.  Clean separation of assets and debts is another difficult task, but one that Howard Dvorkin, the founder of Consolidated Credit Counseling Services says is absolutely necessary, or the consequences can be devastating. Although the task may seem insurmountable, “the alternative is much worse,” says Dvorkin. “Having a spouse drive up your debt when you’re not married anymore” can seriously affect one’s credit score.

3. Depending on your former spouse to comply with financial arrangements. This is also a huge mistake, according to the USA Today article. Although both parties in a divorce are beholden to a court-ordered divorce agreement, creditors do not fall under that arrangement. If your ex spouse is supposed to pay the mortgage, but doesn’t, “the lender is going to sue both of you,” remarks Melissa Avery, an Indianapolis family law attorney. This holds true in Alabama divorces as well; if your ex fails to pay the mortgage, you may be hurt when applying for future loans.

4. Not reviewing your estate plan after a divorce. Wills and trusts can also be seriously impacted by divorce proceedings. If divorced spouses wait unnecessarily long to change a beneficiary on a will, for example, the money may go to the wrong person-your new spouse may get nothing, while your ex spouse inherits the amount provided for in your will.

5. Not understanding the different tax treatment of alimony vs. child support.  Finally, never forget which amount of money in your divorce settlement is alimony, and which amount is child support. Whereas child support payments are not taxable to the recipient, alimony payments are. Furthermore, there are limits to how long a person can receive such payments-child support payments can no longer be received once the child turns 18 or is done with college, while spousal support generally ends once the recipient remarries.

Often lawyers will use multiple methods of discovery in an effort to obtain complete information.  I have had clients ask me not to pursue discovery for fear of the costs that would be incurred.  This is often short sighted.  An example from a recent case I had is instructive.

I was representing a wife in a divorce case.  The husband had complete control of all of the finances and the wife was not even aware of all of the assets.  Through the discovery we sent to the husband he produced a spreadsheet that he claimed were the assets.  The wife was surprised at the amount of assets that were disclosed.  They were much more than she thought they had.  But, the husband showed what he claimed to be the fair market value and the loans owed on them.  In all, he showed a net equity of less than $500,000.  It was more than the wife suspected, but something told me it was less than it should be.  So, we subpoenaed his bank records.

The bank produced documents to us that included the husband’s loan application and the net worth statement that he provided to the bank.  And, you’ve probably guessed the punch line – the net worth statement he provided to the bank included assets that he had not disclosed on the financial statement he provided to us, and the values were higher.  In all, the difference was that he showed a net worth on the financial statement provided to the bank that was nearly $2.5 million dollars – increasing the marital estate for the divorce judge to divide by about $2 million!

My client now understands it was to her benefit to make sure we did a thorough job of discovery.  Obviously this example (though completely true) is not what usually happens – at least not to this degree.  But, the lesson is a good one – make sure that your lawyer does a thorough job of discovery.  And, make sure that you let him.

Though she is not a player, the 28-year-old California native has divorced her husband of six years due to his development of what she describes as a “crippling addiction” to the game.

She claimed that shortly after he would come home from work at 6:00 p.m., he would begin playing until 3:00 a.m. She said that he was even worse on the weekends, when he would play from the morning until the middle of the night.

“I ceased to exist in his life,” she said.

Jocelyn and her ex-husband Peter had been friends since age 13. However, nine months was all it took for the marriage to fall apart.

She said she purchased the game as a Christmas present for him in 2004, when it first came out. They had their first serious discussion about the direction of the marriage in May of 2005. She moved out of the house by September 2005.

She also said her ex-husband failed to perform his domestic duties as well. She says that he was no longer paying his bills, nor doing his part of the housework.

She doesn’t hesitate to say that the game was the main reason the divorce took place and is still emotional about the impact it had on the marriage. She was upset that her husband would ruin his life and his marriage for “a fantasy land.”

This story was originally told at Yahoo Games and can be found at this link.  Though it only includes one side of the story, if true, it is sad that a video game could cause the break up of a marriage.  It reminds me of the title of a good book, Amusing Ourselves to Death.  Or, in this case Amusing Ourselves to Divorce.

Most people don’t know that court decrees assigning payment responsibilities for joint loans are not honored by lenders. This incorrect assumption of being off the hook for financial obligations can result in payments being missed and your credit score being tarnished for years. However, you can limit your exposure to this type of risk this if your credit is safeguarded before filing for divorce.

If you and your spouse have joint accounts, you should do your best to change them to individual accounts so that splitting up your financial responsibilities will be easier. This may or may not require your spouse’s cooperation. It will depend on how the debt is titled and on the requirements of the creditor. However, these steps can save years of credit woes in the future.

You should begin this process with your credit card accounts. Payments on credit card debt are the most often missed, as opposed to home and vehicle loans. Those loans are the second thing you should work on.

However, refinancing your mortgage and car loans will be more difficult, as banks or mortgage companies will likely require additional transaction costs to refinance the loan. Selling the car or house and splitting the money could be an easier method, which would guarantee a vengeful ex-spouse wouldn’t damage your credit.

Opting out of receiving pre-screened offers for credit or insurance is also advisable, as a former spouse could be tempted to apply for a loan in your name in order to ruin your credit.

Of course, this information is not specific legal advice for your own situation. Rather, it is general information. Before taking any action, you should discuss these issues with your lawyer.

Some veterans have questioned if the figures are accurate, but defense officials have cited recent efforts to support couples enduring long separations and hardships due to the wars.

According to the Associated Press, the divorce rate represents over 25,000 failed marriages among approximately 755,000 active duty troops throughout all branches of the military who are married from a period between October 1, 2006 and October 1, 2007.

According to the Defense Department’s data, the Army, which is the branch with the largest number of troops in Iraq and Afghanistan, had a 3.2 percent rate of divorce, which is unchanged from the previous year. That percentage represents 8,748 divorcees among approximately 275,000 married troops.

Army couples had to deal with extended separations due to tours of duty lasting 15 months instead of 12 months. Longer deployments and multiple tours have taken the blame for stresses on military couples.

The biggest exception to the data is the divorce rate among female troops. Over the past several years, women in the military have had twice as many marriages fail as men.  The data did not provide firm numbers, but it appears that in 2007, eight percent of women in the service have divorced and 2.6 percent of men have divorced.

There is no system that can compare this rate to the rate among civilians. According to the Centers for Disease Control and Prevention, the general population’s divorce rate was 3.6 per 1,000 people in 2005, which was the most recent statistics available and the lowest rate since 1970.

According to Todd Bowers of Iraq and Afghanistan Veterans of America, there is a crushing effect on military marriages from the war, producing a rising number of breakups. However, he says, these are not being tracked because they are among people who are no longer in the service.

Suzan Hughes said that she was played a tape of a phone call Pellicano illegally intercepted between Hughes and Bill Gillespie, the husband of her sister. After hearing the tape, was convinced Gillespie was not on her side in the divorce battle.

Pellicano, 64, has been accused of running a criminal enterprise which has taken actions such as tapping phones and bribing police in order to gather dirt on celebrities such as Sylvester Stallone and Gary Shandling in order to aid his clients in gaining an advantage in legal and other disputes.

Pellicano and four co-defendants pled not guilty to various charges.

According to the prosecution, between September 1997 and March 1998, Pellicano listened to the telephone calls of Hughes.

During her testimony Suzan Hughes also said that during her divorce proceedings in the late 1990s, she had hired Pellicano in order to investigate Hughes and Darcy LaPier, his mistress at the time. LaPier, ex-wife of actor Jean-Claude Van Damme, later married Hughes.

In May of 2000, Hughes passed away due to an overdose of alcohol and anti-depressant medication. Last year, his estate filed a civil suit against Suzan Hughes, Pellicano, and others in connection with the wiretapping. That case is still pending.

On Friday, actor Keith Carradine also testified. Sandra Will Carradine, his former wife hired Pellicano in order to investigate him during a bitter court proceeding. She pled guilty to two perjury counts and is expected to be called as a witness for the prosecution next week.

Those of you facing divorce should be careful about illegally recording phone calls between your spouse and another party.  Talk to your divorce lawyer about when it is or is not legal to record phone calls.

The main thrust of Samantha’s article is for women to be involved and educated about the money and financial issues in the marriage.  Some of the other points she makes are summarized below. Here is a link to the entire article.

According to recent statistics, U.S. divorce rates have decreased in recent years after a peak in the 1970s, but still remain fairly high. In addition to being an emotional breakup, divorce can bring about serious financial issues that can have long-term consequences on the economic stability of a woman.

According to recent studies, a woman’s standard of living decreases at least 30 percent after divorce, which means getting a grip on finances both during and after divorce is crucial for surviving intact.

Don’t Bury Your Head in the Sand

All women-especially divorcées-need to overcome their aversion to money issues, educate themselves and set financial goals. Part of the reason why divorce hits women so hard financially is due to most of them being reliant on their husbands to take care of household financials while married and then becoming shell-shocked having to manage their own situation on their own.
Self-sufficiency is crucial, and these tips can help.

Study Your Finances

According to investment advisor Lisa Fox, women often have no idea what they have financially. She says that during an after a divorce, they should be aware of all investments and read each financial statement, investigating anything they are unsure of. Fox also suggests keeping track of finances by copying all important documents.

Knowing what you have puts you in a better position for negotiation during divorce.

Create a Budget

Draw up a post-divorce budget while in negotiations in order to provide yourself with a snapshot of the type of settlement you’ll need, keeping in mind that downsizing may be required for your lifestyle after divorce.

Money: Not Just a Man’s Issue

Because women tend to live longer, earn less money during their lifetimes, and not be prone to investing, they have different financial needs than men. This makes getting a handle on financial issues is important, and should be done so sooner than later.

Divorce is never easy, but through common sense and financial responsibility, making the transition can be made easier.

“According to a study in 2006, approximately six percent of the population of the U.S. can be classified as “compulsive” shoppers.

According to research, compulsive shoppers average around $9,000 worth of credit card debt.

According to psychologist Dr. April Benson, who specializes in treatment of compulsive shoppers, many people who spend a great deal of time shopping and making compulsive purchases typically feel “really hollow inside.”

Benson says that compulsive buyers will generally attempt to fill the “hollowness” with material things, which can result in severe consequences.

According to studies, women are not the only ones who can become impulsive shoppers, men are just as likely to succumb to uncontrolled spending.”

I recently helped a client in a divorce in Mobile, Alabama where the husband has incurred an incredible about of debt going gambling at the casino boats.  That situation is very similar to what they are describing in this article – compulsive, addictive behavior that escalates over time to the point that it interferes with one’s relationship with their spouse and eventually ends in divorce.  In either case, it is a sad conclusion for a behavior that may have started out innocently enough.

Here is the women’s views on the subject.

And, here are the men’s views.

Click here if you’d like to view their site and see if they have any resources that you or someone you know may be able to use.

A quote from the article – “In this age of telecommunications and voice messaging, there is still no substitute for quiet, prolonged exposure of one soul to another. With all the marvels of the Internet and a reach-out-and-touch-someone technology, husband and wife are more in need of quiet and prolonged communication than ever before. The more busy and crazy our lives become, the more communication protects the marriage.”

If more husbands and wives communicated better and more deeply, I’d have a lot less work.

My divorcing clients are often surprised when we discover assets or accounts they never knew about. This applies to financial asset accounts as well as credit accounts they may not have known about (for secret purchases). The fact that such accounts are in existence for these divorcing spouses, seems to offer some support for the theory that keeping such secret accounts is not a sign of a healthy relationship.

I look forward to the additional articles in this series, and I will posts the links here as they appear.

His guest blogger, a pastoral marriage and family therapist, obviously knows his subject. His first “secret” was regarding transparency in money issues. This one speaks to good communication skills and “breaking” your spouse’s “code.” Good stuff.

I would change the title of this one to “words matter” or “words are powerful”. But, his point is well made.

Even those happily married could benefit from this advice, “praise your spouse often in public and in private.”

If more of our prospective clients put into action the “secrets” that Ben’s guest blogger, Dr. Kuhne, is sharing we’d have to find another source of revenue. And, that wouldn’t be a bad thing. The truth, is however, that the demand for family law attorneys is not declining anytime soon. To do so would take a major shift in our culture that does not currently seem to be on the horizon. The entire article is also continued below.

Ben has posted secrets number 4 (After the Fight, Review the Match) and 5 (Finding the Self in the We).