Kansas City Divorce Lawyer & Attorney : Wortman Law Firm

I came across the following article on  about.com, and I thought that it contained some excellent points and considerations for those who are not only thinking of getting married or have been recently married, but evn for those of us who have been married for several years.  Of course, as a divorce attorney I see a lot of the intimate details of people's family life, and the lack of compatibility and/or planning of some married couples never ceases to amaze me.  No matter how you look at it, marriage is a serious, life changing decision, and it should not be taken lightly.  There is a reason that over half of all marriages end in diovrce, and many shouldn't have to.  I encourage everyone to think about these things, and thanks to authors Sheri and Bob Stritof for their insight.

Discuss These Issues Before Walking Down the Aisle

Many marriage education experts caution that when couples believe in the myths of "happily-ever-after" or "love conquers all," problems in the marital relationship may surface within a short time after the wedding.

The success or failure of your marriage relationship may hinge on how well you deal with issues such as finances, sexuality, communication, conflict, parenting, in-laws, leisure time, family of origin, spirituality, expectations, and chores.

Even though you may be very busy with wedding preparations, it is critical that you make time to prepare for your life time together by exploring your relationship in more depth.

Communication, along with a willingness to grow closer together, is one of the keys to a successful marriage.

General Issues to Talk About Before You are Married

·                                 Why are we getting married? Pregnancy, financial security, loneliness or wanting to get out of the family home are not valid reasons to get married.

·                                 What do we as a couple want out of life?

·                                 Do you have a criminal record?

Family of Origin Issues to Talk About Before You are Married

·                                 What was your childhood like?

·                                 Was your family an affectionate one?

·                                 Do you think we will have problems with your family during the holidays?

·                                 What values do you want to bring from your family into our marriage?

·                                 What do you like and dislike about your family?

Self Image Issues to Talk About Before You are Married

·                                 How would you describe yourself?

·                                 How do you think I see you?

·                                 Am I a jealous person?

·                                 Do I have trust issues or feel insecure?

·                                 How important is affirmation to me?

·                                 Do I handle compliments well?

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Divorce: Preplanning Strategies

Nobody marries with the expectation of failure. Married couples never contemplate that the person they once loved could later seem to be a stranger and perhaps even an enemy. Yet, statistics paint an ugly picture. Approximately 4 out of 10 marriages today end in divorce. In divorce proceedings, women lose financially, their standard of living may drop as much as thirty percent in the first year following a divorce. Men, may not suffer as great financially, however, they tend to lose precious time with their children.

One of the greatest contributors to divorce is the issue of "control" - either financial or personal. Who controls the bank account? Who sets the social agenda? When one partner to a marriage "controls", the other partner loses their sense of self. A divorce becomes imminent as the controlled partner tries to regain their self-esteem.

There are several simple and logical ways to protect yourself financially if you believe your marriage is in jeopardy:

1. Keep Non-Marital Assets Separate

Non-marital assets are not part of the assets divided in a divorce. Instead, they are considered the asset of either the husband or the wife and generally awarded to that person in a divorce proceeding. Categories of non-marital assets include:

• property you inherit;
• proceeds from personal injury awards (ie. Worker's compensation or accident proceeds);
• items owned prior to marriage; and
• gifts to one party rather than the family.

If non-marital assets are commingled with assets purchased or improved during the marriage, it may not be possible to claim the asset as yours in the event of divorce. However, some "tracing" of non-marital assets may be possible. For example, if a non-marital asset is sold during the marriage and the proceeds from the sale are used to purchase another asset, it may be possible to "trace" a non-marital interest in the new asset. For example, if a car owned before a marriage is sold during the marriage and the proceeds used to purchase a new vehicle, a party may be able to claim a non-marital interest in the new vehicle. To do so, it is very important to retain all documents demonstrating the sale of the asset and the use of the proceeds realized from the sale.

2. Establish Your Own Credit

Make sure your name is listed on all household accounts and investments. Establish at least one credit card in your own name. This will help to create an individual credit history. When you are on your own, you will have a better chance qualifying for loans, mortgages and credit cards. These are all important considerations after a divorce.

3. Review Your Financial Holdings Regularly

Maintain complete and separate records of your financial holdings such as bank accounts, IRA's, 401K, land purchases, and stocks. This includes assets in your spouse's name as well. You may wish to maintain copies of these records at your place of employment or in a safety deposit box in your name. Records have a way of disappearing after a divorce has been started.

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The following article has recently appeared on at least a few of the family law blogs, which I found to be particularly interesting.  Thanks to the Oklahoma Family Law Blog and the Georgia Family Law Blog for sharing this information with us.

Marriage has become a delicate venture. According to the U.S. Census bureau, about nine out of ten people will marry sometime in their lives, but about half of first marriages will end in divorce. And while some marriages end peacefully, with both sides agreeing to an equal and fair settlement, some do not, and the ensuing process can get quite vicious.

When ex-spouses significantly distrust each other, it is advisable to engage the services of a lawyer, especially if one or both do not understand their household finances and the economic implications of marital settlements. In turn, attorneys often hire CPAs as forensic accountants to help represent the spouse who doesn’t have access to the family’s financial information. In these cases, the forensic analysis might include reviewing financial data to determine its accuracy and reasonableness; determining each spouse’s standard of living and disposable income; locating hidden assets; and determining what property may be considered separate from marital property, especially if one of the spouses runs a closely held business. This type of work has created a highly focused segment for the profession: forensic accounting in divorce engagements.

Marriage: The Leading Cause of Divorce? Out of the more than 2 million marriages performed last year, 60% were the first marriage for both bride and groom. Unfortunately, for those first marriages that do end in divorce, the average length of a first marriage is only about eight years. The median duration of second marriages that end in divorce is only about seven years.       

Most newlyweds probably don’t think of their wedding day as the beginning of a personal business partnership: making money, budgeting, accumulating assets, and investing for the future. Nevertheless, couples should still plan how to divide this property at the blissful beginning, not the bitter end. This planning could take the form of a premarital agreement, which may not be a perfect document, but is generally enforceable in all 50 states. This is why both spouses must understand their household’s finances. It is not a good idea to allow one spouse to run all the finances while the other spouse knows nothing about it. After all, the person you plan to spend the rest of your life with would never try to hide something from you … or would they?

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And in the fabulous world of family law entertainment news...

NASSAU, Bahamas (AP) — A Bahamian judge ordered a DNA test Tuesday on Anna Nicole Smith's infant daughter to identify the girl's father, an attorney for the baby's grandmother said, the latest chapter in a bitter custody feud sparked by the pinup's death last month.

Larry Birkhead, an ex-boyfriend of the former Playboy playmate who asked the judge to order the test on 6-month-old Dannielynn, pumped his fists in the air and jumped up and down as he emerged from the private court hearing.

"It's been a good day in court for me," he told reporters. Asked if he thought he would see the girl soon, he only smiled and winked.

Deborah Rose, an attorney for Smith's mother Virgie Arthur, confirmed that the judge ordered the test but she and others who attended the hearing declined to describe the proceedings.

Authorities left the building after the hearing and could not immediately be reached for comment.

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Modifying Child Support Order Requires Calculation Of Presumed Amount
On motion to modify child support, Circuit Court must determine presumed amount, and determine whether to accept or reject it, even when no party requested findings of fact.
Laura M. Klingseisen, n/k/a Laura Al-Amery, Petitioner/Appellant, v. Robert E. Klingseisen, Respondent. Missouri Court of Appeals Eastern District

No Continuing Change Needed To Modify Custody
Statutes do not require a continuing change for modification of custody, only for modification of child support. Despite Circuit Court's use of incorrect basis to deny motion to modify, Court of Appeals affirms because Circuit Court found that Child's best interests also favored denial. Awarding attorney fees based only on the parties' incomes, without regard to their expenses, is an abuse of discretion.
Misti L. Kinner, Formerly Isenbletter, Petitioner-Appellant/Cross-Respondent, v. Michael L. Scott, Respondent-RespondentCross-Appellant. Missouri Court of Appeals Southern District

Order To Pay For Private School Not Supported In Record
To order a Parent to pay tuition for a private or parochial school, record must have evidence of Child's educational needs or parents' agreement. Court of Appeals affirms award of attorney fees to party who prevailed on issues in motion to modify, but such an award does not constitute maintenance.
Kenneth D. Goins, Appellant, v. Lori D. Goins, Respondent. Missouri Court of Appeals Eastern District

Paternity Determination Between Twins Affirmed
Blood tests showed that paternity by either twin was equally likely. Circuit Court was entitled to rely on other evidence, including testimony of Mother, to determine paternity. Affirmed.
State of Missouri, ex rel., Department of Social Services, Division of Child Support Enforcement, and Holly Marie Adams, Petitioners/Respondents v. Raymon Miller, Respondent/Appellant and Richard Miller, Respondent. Missouri Court of Appeals Southern District

Source for Post:  Missouri Bar

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The following post is information for clients who have paternity or custody actions pending in Eastern or Western Jackson county Missouri about the PTLA program which is required by the Court.

PTLA (Parenting Together Living Apart) is a parent educational program designed to teach parents who have never been married to each other but have children together the value of co-parenting their child(ren) cooperatively so as to maximize the healthy emotional development of their child(ren). This program is most effective when utilized prior to mediation. There is no cost for attendance.

Program Objectives:

• Parents will have a better understanding of the importance of co-parenting.
• Parents will practice positive communication skills.
• Parents will learn about child development states in parental conflict.
• Parents will increase positive parenting skills to work with each other cooperatively.

PTLA Curriculum:

• Parental responsibilities
• Children’s basic needs
• Why children need both parents
• Emotional reactions to the lost relationship
• Children’s developmental states in parental conflict
• Paternity establishment
• Positive co-parenting
• Effective communication skills
• Responsive discipline
• Parenting time suggestions

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The Oklahoma Family Law Blog had a great post yesterday offering tips for a smarter divorce.  The post is reproduced as follows:

The best advice about divorce would be to prevent it if possible; nearly half of all marriages end that way--sort of. In reality, from a cumulative point of view, less than 41% of all the marriages end by divorce. The 50% figure stems from the annual divorce rate and is misleading because the people divorcing each year are not, for the most part, the same ones who are marrying. But whether the U.S. divorce rate is below 41% or closer to oft-quoted 50%, the fact is that divorce is common and, sadly, seems here to stay.

Perhaps more interesting is the fact that some researchers have found that nearly 80% of divorces are unilateral, as opposed to something both parties want. If this statistic is correct, then four out of five divorces are unwanted by one of the spouses. If you are the one who wants out, you'll have the power to decide when and how to best to approach the split.

This advantage is critical because once a marital dissolution petition is filed, many jurisdictions impose automatic restraints against shifting assets or changing the status quo ante (the way things were, just before the filing). That can complicate things if you do not plan ahead. One the other hand, statistics tell us that 70% of divorce filings are by women. So men, it's not likely you'll control the timing of the split, though you might control the purse strings.

But no matter who files, planning a divorce, or defending against one, can feel like taking on a second job, with so much to consider. For example, if you are the one who wants out, you must weigh whether you can trust your spouse not to financially annihilate you just to spite your decision to leave. Will he or she do everything possible to destroy what you worked so hard to attain while the marriage was working? Are there steps you can take to minimize the damage of divorce, while protecting your relationship with your kids, your property and your income?

Moreover, for many individuals, a divorce involves more than just dealing with finances and the kids. It affects not just the immediate family but perhaps elderly parents that need to be looked after, not to mention relationships with extended family members, friends and even beloved in-laws. Because of the emotional upheaval, many couples benefit from therapeutic counseling, as well as financial planning, in the act of dismantling a life built for two.

The bottom line is that you need to protect your own interests, while still being reasonable, if possible. And though you might think your spouse will act prudently, don't count on it. Very few people encounter divorce without responding in an emotional way. In the words of Ben Franklin, an ounce of prevention is worth a pound of cure.

You should be prepared for the chance that your divorce may become adversarial and that, for a while, your spouse will turn into a person you never knew existed. So try to bear in mind that while you may be taking an action that you think is merely rational, it's very possible that he or she will interpret your actions differently or, perhaps worse, offensively, creating more problems.

Naturally, with an iron-clad prenuptial or postnuptial agreement, the divorce process will proceed in a more predictable fashion. But even then, expect your spouse to fight the the agreement's enforceability based on grounds that it might be unconscionable now to enforce it, although it was perfectly fair when it was executed.

On the whole, divorce brings uncertainly that can breed anxiety, hostility or worse. But there are steps you can take to place yourself in a more advantageous position while you determine if your differences are irreconcilable or not.

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Attorney Peter Mullison in Denver Colorado has just launched a new blog, mycoloradodivorcelawyer.com, which looks to be a great resource for Colorado family law issues, particularly for those in the Denver area. Check it out here

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Standard of proof for modification of joint physical custody. Kimberly Russell n/k/a Kimberly Bichsel, Respondent v. Mark Russell, Appellant, No. 87917 (Mo. banc, January 9, 2007), Wolff, C.J.
  It is axiomatic that the modification of visitation only requires that the proposed change be in the best interest of the child whereas a modification of custody requires a more stringent standard of proof, i.e. that there has been a change in the circumstances of the child or custodial parent such that a modification is needed in order to serve the best interests of the child.
  The parties' original judgment granted them joint legal and physical custody of their three-year-old child. The schedule essentially had the child with mother during the work week and with father every weekend. Since that time, mother has become employed full time, and the child goes to school. Father now worked until late evening on most Fridays as well. The trial court changed the core schedule to begin father's custody on Saturdays at 9:00 a.m. and granted the mother the third weekend of each month. Other modifications not involving custody were entered, but not important to this summary. Father appealed because the trial court used the standard of proof for visitation modification.
  Held: Affirmed as to modification of custody. Section 452.410 RSMo addresses modifications of custody, and §452.400.2 addresses modifications of visitation.
  “The question here is which modification statute applies to a court's previous award of joint physical custody. A threshold matter in many modification cases will be whether the initial custody arrangement is, in fact, joint physical custody, as defined by statute.”
[§ 452.375.1(3)]. This opinion determined that this original judgment was for joint physical custody.
  “This case presents a clear example of one concern created by this legal paradigm shift (from sole custody/visitation to joint custody). Changes such as those the circuit court made here – essentially a few hours a week – are not as drastic as a shift from sole custody of one parent to sole custody of another parent. The requirement that the change be substantial is no longer appropriate where simple shifts in parenting time are at issue. Courts should not require a 'substantial' change from the circumstances of the original judgment where the modification sought is simply a rearrangement in a joint physical custody schedule.”
  Even though the trial court applied the visitation modification statute, its judgment can be affirmed by applying the correct standard.

Source for Post:  Missouri Courts Bulletin for February 2007

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Pension Was Marital And Non-Marital Property
Pension is a hybrid of marital and non-marital property; the former to the extent that it represents deferred payment of wages earned during the marriage, and the latter to the extent that it represents compensation for future wages lost due to disability. Remanded to Circuit Court to reconsider property and debt division, and maintenance awards.
Sandra Ray Coffman, Respondent v. Elvin Cale Coffman, Appellant. Missouri Court of Appeals Western District

Separable Finality Did Not Apply
When a party to an action for dissolution of marriage dies, action continues if Circuit Court has already dissolved marriage "even though the order may be partial, interlocutory or not a final judgment resolving all issues in the case." But action abates if Circuit Court has not already made some order purporting to dissolve the marriage. Order nunc pro tunc cannot correct that omission.
Mary Ruth McMilian, Appellant, v. James Henry McMilian, Respondent. Missouri Court of Appeals Western District

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