Kansas City Divorce Lawyer & Attorney : Wortman Law Firm

After divorce, it is common for the parties to agree to sell their marital home, or it may be ordered by the Court.  It is also common for one party to keep the home, and "buy out" the other spouse for their share of the equity.  In the current market however, sometimes this is not possible, and the value of the home is such that a sale will not bring enough proceeds to cover the outstandig mortgages.  In this situation, divorcing spouses may have no choice but to consider a short sale.  The following article, recently posted on the New Jersey Law Blog, explains a short sale, and the possible benefits and risks.

A short sale is when the proceeds from the sale of a home are not sufficient to fully pay off all outstanding debts which are secured by the property (mortgages) after first deducting the homeowner’s costs of selling the property.  In such instances, the selling homeowner can either bring funds to closing to make up the difference, or obtain approval from his mortgage holders to accept a reduced amount to satisfy his outstanding loans. 

Unless a homeowner is able to pay off all of the mortgages which are secured by his property, the homeowner will not be able to convey good title to a buyer.  If the homeowner is unable to obtain a sales price which enables him to pay off all loans and closing costs, and he does not have the funds to make up the difference, then he may want to try to obtain approval from his current lender(s) to accept an amount less than the full amount due on its mortgage.  For a lender, this may be acceptable to obtain repayment of a substantial amount of its loan and to avoid the costs and delay of foreclosing on the loan.  This will generally mean that the Seller will not receive any funds from the sale of his home.

In order to obtain such approval from a lender - which may or may not be granted - the homeowner needs to contact his lender(s) to determine what information they will need to make their decision.  This usually includes a financial statement of the homeowner, copy of a contract of sale, appraisal, and other pertinent documents.  Generally, a lender will not consider approving a short sale without a clear economic hardship on the part of the homeowner and an existing default or pending foreclosure.

Until recently, forgiveness of a debt under these circumstances, could trigger a taxable event according to the IRS.  This means that if a lender forgave a part of the mortgage debt by accepting a reduced amount in full satisfaction of the loan, then the amount forgiven could be deemed taxable income to the homeowner.  This was so even though the homeowner received nothing from the sale.  However, in December 2007 Congress passed the Mortgage Forgiveness Debt Relief Act of 2007.  This Act amends the Internal Revenue Code to exclude from gross income amounts attributed to a discharge of indebtedness incurred to acquire a homeowner’s principle residence.  The amount of the debt forgiveness can be up to $2.0 million.  Thus, a homeowner is now able to sell his home for less than what is owed on it without incurring an additional tax liability.   This exemption for forgiven debt, however, is only temporary and expires within three years.

Source for Post: New Jersey Law Blog

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Princeton encourages it. Harvard’s a big fan. From Tufts to MIT, some of the most prestigious universities in the nation are urging students to consider something that would make most parents cringe: The idea of putting off college for a year in favor of some much-needed down-time. 

It’s called a “gap year.” And while it’s been a common and popular rite of passage in Australia and the U.K. for decades, the concept is now starting to gain significant steam here in America.

Why? A growing number of high school seniors are balking at riding the academic conveyer belt from preschool, all the way to university. They’re burnt out. Or not quite ready. Or they want to explore a few interests before deciding what to study in college. So instead of packing their bags in anticipation of freshman year, they’re volunteering in New Orleans or teaching in Thailand. They’re starting the great American novel, or interning to help figure out what they want to do with their lives.

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Every divorcing parent should make it their top priority to keep their children from getting caught in the middle of the conflict of their divorce.  The following is the third installment of tips and thoughts are from James Roberts, RSW, a licensed social worker  in Missouri and Kansas and family therapist in Kansas.  Mr. Roberts practices with Madison Avenue Psychological Services in Kansas City Missouri.  

9.     Child Abuse Allegations

It is becoming common for conflicting parents to express their hostilities by making unfounded allegations of child abuse.  For children the consequences of these allegations are negative and far-reaching.  Children are drawn into evaluations, investigations, and court testimony which greatly increase the risk of prolonged confusion, hurt, and anger.

10.     Custody Fights

Some parents pursue custody fights when they know perfectly well that the real reason for the custody action is to be vindictive.  Children experience custody battles between their parents as extremely stressful.

11.     Child Support

Parents too often use child support by withholding it, demanding more, or making payments late when the real motivation is to perpetuate a dispute with the former spouse.  In many homes children suffer directly when child support payments are not made regularly or when conflict is expressed indirectly in this way.

12.     Using Noble Ideas to Hide Double Standards

A custodial parent might say "i want her to make her own decisions" when a child refused to visit the non-custodial parent but strictly enforce curfews when the same child wants to stay out late.  A custodial parent might say "He has the right to his own feelings" if a child says critical things about his non-custodial parent but lecture and browbeat the same child for "talking back" at home.  Children are sensitive to inconsistencies.  They react to them with mistrust and cynicism.

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Every divorcing parent should make it their top priority to keep their children from getting caught in the middle of the conflict of their divorce.  The following is the second installment of tips and thoughts are from James Roberts, RSW, a licensed social worker  in Missouri and Kansas and family therapist in Kansas.  Mr. Roberts practices with Madison Avenue Psychological Services in Kansas City Missouri.  See the March10 post below for tips 1-4.

5.     Sabotaging the Child's Routine

When parents fail to give a child medication, fail to follow through on discipline imposed by the other parent, or bend rules on bed-time, diet, or curfews out of anger for the other parent, they are involving the child in parental conflicts.  conflicted parents frequently take their children to medical professionals without consulting the other parents as a way of acting out unresolved divorce disputes.  This practice places parental conflict above the child's medical well-being.

6.     Compensating for the Other Parent's Failures

One divorced parent may view the other parent as a poor parent for being "too lenient", "too strict", "too involved", or "not involved enough".  Such parents often try to compensate for the other parent's "failures' by being the opposite kind of parent.  Children in such situations suffer by not having parents who are using a balanced approach to rearing children.

7.     Making a Popularity Contest of Parenthood

A parent may try to win the affection of a child out of fear that the child favors the other parent.  such parents go overboard to "be nice" or refrain from being firm with their children. Children suffer in these situations by not having the advantage of a parent who is acting in the proper role of authority figure.

8.     Being an Accomplice to Whining

A parent may allow a child to complain about the other parents without helping the child see a more balanced view of the other parent.  If the parents either passively accepts the complaint or fails to urge the children to take up these grievances with the other parent they subtly encourage children to use indirect communication as a way of managing conflict.

The remaining 4 tips will appear in a future post

Source for Post:  James Roberts, RSW and the Kansas City Metropolitan Bar Association

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Every divorcing parent should make it their top priority to keep their children from getting caught in the middle of the conflict of their divorce.  The following tips and thoughts are from James Roberts, RSW, a licensed social worker  in Missouri and Kansas and family therapist in Kansas.  Mr. Roberts practices with Madison Avenue Psychological Services in Kansas City Missouri.

Parents who are either in the middle of a divorce, thinking about divorce, or already divorced should pay careful attention to the following ways that parents put their children directly in the middle of the conflict, and do their best to avoid them!

1.     Bad Mouthing

One of the most hurtful things a divorce parent can do to a child is to criticize the child's other parent in the child's presence.  Statements such as "Your father caused our divorce", or "if it weren't for your mother, we'd still be a family," are common examples of "bad-mouthing"

2.     Forcing a Child To Choose

It is harmful to pressure a child to "take sides" in a dispute between the divorced parents.  Children have a right to their own thoughts and feelings about the divorce and deserve to know they will be loved by both parents regardless of the opinions and feelings they have.  If parents are in conflict over custody and children are facing a decision about which home to live in outside professionals should be called upon for help.

3.     Spying

A parent who asks a child questions about the other parent's personal life is asking that child to become involved in the parents' conflicts.  Children in this situation may end up feeling they have betrayed a parent they love.

4.     Making the Child the Messenger

Parents make their children do a parent's job when they ask their children to carry messages to the other parent.  Children learn indirect ways to communicate when asked to be messengers and may feel guilt over having to assume adult responsibilities for their parents' communication

The remainder of James Robert's list will be posted to this blog in two future articles.

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Case Summary:
Past standard of living is not the standard for setting maintenance, but Wife showed that she can not meet her reasonable needs by working presently or in the future because of poor health and limited education. Circuit Court awarded proper amount, but used wrong term, in awarding maintenance, so Court of Appeals amends judgment to use right term. Substantial evidence supports imputation of income to Husband and award of attorney fees against him.
In re the Marriage of Debbie Lynn Taylor and Willie James Taylor, Debbie Lynn Taylor, Petitioner-Respondent, v. Willie James Taylor, Respondent-Appellant. Missouri Court of Appeals Southern District

Missouri Law pertaining to Awards of Maintenance (Alimony)
The trial court can award maintenance only if it finds that the party seeking maintenance "(1) Lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs; and (2) Is unable to support himself through appropriate employment[.]" Section 452.335.1.This section requires the trial court to follow a two-part threshold test. The court must initially determine if the requesting party has sufficient property to meet his or her reasonable needs, and if they do not, then the court must examine whether or not the party's reasonable needs can be met through appropriate employment.  Childers v. Childers,26 S.W.3d 851, 854 (Mo.App.W.D. 2000). The spouse seeking maintenance has the burden of establishing the threshold requirements. Comninellis v. Comninellis, 147 S.W.3d 102, 106 (Mo.App.W.D. 2004). After the court finds the threshold test has been satisfied, then the court may consider the statutory factors under Section 452.335.2 with respect to amounts and duration. Monsees v. Monsees, 908 S.W.2d 812, 817 (Mo.App.W.D. 1995).

In this case, Wife established that (1) she lacked sufficient property, including marital property apportioned to her during the dissolution, to meet her reasonable needs; and (2) that she is unable to support herself through appropriate employment.

Under Section 452.335.2, the court, in determining the amount and duration of a maintenance award, may consider all relevant factors including:

The financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently[;]
The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
The comparative earning capacity of each spouse;
The standard of living established during the marriage;
The obligations and assets, including the marital property apportioned to him and the separate property of each party;
The duration of the marriage;
The age, and the physical and emotional condition of the spouse seeking maintenance;
The ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance;
The conduct of the parties during the marriage; and
(10) Any other relevant factors.

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Here's How:

Source for Post: Cathy Meyer's Divorce Support Blog at about.com

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The Issue of attorney's fees often comes up in domestic litigation.  Missouri has adopted the American Rule regarding attorney's fees in that, absent statutory authorization or contractual agreemtn, each litigant, absent few exceptions, must bear the expense of their own attorney's feesl  However, Missouri's dissolution of marriage law allows the court to order one party to pay the other's attorney's fees, but the court must consider all relevant factors including the financial resources of both parties, the merits of the case, and the actions of the parties during the action.  The inability of one spouse to pay his or her own or the other party's attorney's fees is not determinitive.  Some examples supporting an award of fees would include unfounded allegations of child abuse, concealing assets, abuse of discovery, and failure to appear for trial. 

Recent Case
The Party seeking an award of attorney fees has the burden of proof to show that an award of attorneys fees is appropriate.  In the recent case cited below,  the record contains some evidence of father's financial resources—retirement and disability—but none on Mother's financial resources or on "any unusual circumstances warranting departure from Missouri's adoption of the American rule requiring each litigant to bear their own expenses." Circuit Court abused its discretion in awarding fees. Reversed.
Tina Marie Hihn, Respondent, v. Joseph Alexander Hihn, Appellant. Missouri Court of Appeals Eastern District

 

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The holiday season conjures up many images for all of us. The most universal of these images is one that includes happy excited children. However, for children from divorced or separated families, the holidays can be a nightmare. What other children may experience as a joyful time filled with excitement and good feelings, children whose parents are divorced or separated see quite differently. Often the holiday time marks a period of turmoil and chaos, as the estranged parents are forced to negotiate additional child centered issues. Depending on the degree of hostility between the parents, children of divorce approach the holidays with feelings ranging from mild ambivalence to absolute dread. This article will explore what children of divorce experience at holiday time with a focus on holiday visitation, parents' legal rights and ways that parents can help ease the pain and reduce conflict so the holidays can be enjoyed by all.

First, regardless of financial or marital status, we all experience stress around the holidays. We spend too much, eat too much, party too much and always seem to have too little money, too little sleep, and too little time. It is important to recognize that most people feel inadequate around the holidays.

Second, regardless of how good the relationship is between the divorced or separated parents, children and their parents always experience some sadness around the holidays. After all, the holidays are a time for reminiscing and reassessing our lives. The divorced or separated family is always aware of the pain it has suffered and the holidays magnify this pain. Reminiscing is part of the holiday tradition, as we remember holidays gone by with stories or browsing through the family album. For the divorced or separated family this experience is bittersweet, as they reassess how it "used to be."

Third, we have unrealistic expectations. This result is the "post holiday blues" many of us experience in January. We expect more from ourselves and others than is possible, so we feel let down and disappointed.

Fourth, the ability of the children to adjust not just to the holiday visitation schedule, but to the divorce or separation, in general is directly effected by how well the parents have learned to adjust to their new roles as ex-spouses and co-parents. The above four issues give insight into what parents need to do, regarding their children.

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Discussed below is a recent ruling from the Western District of Missouri, where the Court, among other things, upheld the trial Court's ruling of imputation of income for child support and the award of attorney's fees. 

For calculation of child support, a trial court may impute income to a party according to what that party could earn by using best efforts to gain employment suitable to his or her capabilities.   Imputation is appropriate where the parent voluntarily reduces his or her income without justification. Further, Imputation is only proper where the trial court concludes from the evidence that the "parent has the capacity to earn more but voluntarily refuses to do so."  In imputing income, the directions to Form 14 indicate that the court may consider employment potential and probable earnings level based on the parent's recent work history, occupational qualifications, prevailing job opportunities in the community. 

As to the issue of attorneys fees, Missouri law permits the Court to award attorney's fees to a party, but it is not required to do so.  Generally the Court takes the position that each party must bear their own costs of litigation, and usually does not require one party to pay the attorney's fees of another party.  However, if the court does make such an award, the Court must consider all relevant factors including, the relative financial resources of the parties, the merits of the case, and the actions of the parties during the pendancy of the action.  In this recent case, the Court of Appeals stated in so many words that an award of attorney's fees would not be reversed if the award was arbitrary and unreasonable.

The summary of the case is as follows:

Circuit Court Need Not Award All Attorney Fees
Child's best interest does not necessarily require that Spouse who was caregiver during marriage has more parenting time after dissolution. Circuit Court properly imputed income to Spouse based on evidence of earning potential and desire not to achieve it. Actual income includes bonuses and benefits. In property division, Circuit Court need not credit Spouse with separate debts, including attorney fees, and need not award fees where much was spent litigating meritless issue. Payment of past maintenance did not waive contest of future payments, but Spouse did not show that the amount "was unwarranted, beyond [Spouse's] means to pay or so excessive as to constitute an abuse of . . . discretion. Rule allows award of half of transcript costs.
Sharlene Krepps, Appellant-Respondent, v. Richard Lee Krepps, Respondent-Appellant. Missouri Court of Appeals Western District

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What happens if there is a court ordered parenting plan as a result of a divorce, paternity case, or other proceeding, and one of the parents wishes to relocate to another city or state?  Well, Missouri law places a burden on the parent to notify the other parent, in writing, meeting specific requirements, before the relocation.  Essentially, the parents must be able to agree on a new parenting plan, and if they cannot, they have an opportunity to have the Court decide whether the parent can relocate.  The following are the requirements of Missouri's statutory restriction on relocation:

Absent exigent circumstances as determined by a court with jurisdiction, a parent with physical custody of a child will notify, in writing by certified mail, return receipt requested, and at least sixty days before the proposed relocation, each party to this action of any proposed relocation of the principal residence of the child, including the following information:

• The intended new residence, including the specific address and mailing address, if known, and if not known, the city
• The home telephone number of the new residence, if known
• The date of the intended move or proposed relocation
• A brief statement of the specific reasons for the proposed relocation of the child
• A proposal for a revised schedule of custody or visitation with the child

The parent’s obligation to provide this information to each party continues as long as that parent is entitled to custody of a child under a court order. The parent’s failure to abide by this provision regarding the proposed relocation may result in further litigation to enforce the requirement, including contempt of court for violating a parenting plan that has been incorporated into the court’s judgment. In addition, the parent’s failure to notify a party of the relocation of the child may be considered in a proceeding to modify custody or visitation with the child. Reasonable costs and attorney fees may be assessed against the parent for failing to give the required notice.

            Once a parent intending to relocate has given the proper notice to the other parent, the parent receiving the notice has thirty days from the date the notice was received to file a motion and affidavit in court setting forth the factual basis supporting that parent’s objection to the relocation. The parent requesting the relocation will then file a response within fourteen days, unless extended by the court, and this response will include a counter-affidavit setting for the facts in support of the relocation as well as a proposed revised parenting plan for the child.

            The parent seeking to relocate will have the burden of proving that the proposed relocation is made in good faith and is in the best interests of the child.

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Death Moots Appeal
Father's death mooted Mother's appeal of visitation provisions in judgment. As to Third-Party Respondent, Mother's appeal of property division is supported by evidence in the record, so Court of Appeals affirms. "[T]his Court accepts as true the evidence and reasonable inferences . . . in the light most favorable to the trial court's decision [and will] disregard all contradictory evidence and inferences . . . contrary to the court's decision."
Mary Margaret Holtgrewe, Appellant, v. Kurt Lawrence Holtgrewe, Respondent, Marlene V. Holtgrewe, Third Party Respondent. Missouri Court of Appeals Eastern District

Stalking By Text Messaging Not Proven
Plaintiff alleged that Defendant's contacts alarmed her, but testified merely that Defendant's text messages and telephone calls bothered her. Such evidence was insufficient to support a full order of protection.
Christinia M. George, Respondent, v. Candace McLuckie, Appellant. Missouri Court of Appeals Western District

Tax Returns Must Be Disclosed
Movant showed no prejudice in Circuit Court's erroneous refusal to require production of Respondent's tax returns because she did not show that the returns alone would have proven her case. Because Circuit Court found that Movant didn't meet her burden of proof, Circuit Court's failure to make a requested finding of fact on whether maintenance was modifiable or not was harmless.
In Re the Marriage of: Bradley Alan Mangus and Ronda Darlene Mangus. Bradley Alan Mangus, Petitioner/Respondent v. Ronda Darlene Mangus, Respondent/Appellant. Missouri Court of Appeals Southern District

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Ruben Francia has an article posted on Your Child - Your Divorce which looks at the best appropriate divorce parenting practices for school-age children. It is well-worth a full read.

Here is his list of some divorce parenting practices that are best for your child:

· Explain what is happening over and over again. Children this age are confused easily. In simple terms, explain where your child will live, with whom, where the departing parent will live, and who will provide care when both parents are unavailable.

· Encourage your child to talk about how he/she feels. Be sensitive to children’s fears. Let your child know that he or she can openly talk to you about the ups and downs of your separation or divorce.

· Read books together about children and divorce. Use books to help your child talk about feelings.

· Answer all questions about the changes, and keep lines of communication open. Make sure your child feels like he or she can ask you questions and get answers about why the divorce happened and what to expect.

· Plan special time together. Set aside special time to spend with your child but be careful not to make promises you may not be able to keep.

· Repeatedly tell children that they are not responsible for the divorce. Children need to be reassured that the breakup wasn’t their fault.

· Reassure children of how their needs will be met and of who will take care of them.

· Reassure children that everything will be ok, just different. Children are invariably frightened and confused by divorce. It’s a threat to their security. Provide extra hugs and kisses and tell your child that you and other adults will always be near to love and protect

· Talk to your child’s day-care provider about the divorce. She will better understand your child’s possible regressive behaviors and will likely offer extra support.

· Talk to your child’s teachers or school counselors about the divorce. They may then better understand possible learning or behavioral problems and will likely offer extra support.

· Keep daily routines intact. Children feel more secure when there is a standard routine. Stick with bedtimes, no matter at which home the children are. Have some consistent chores. Have some time committed to the child, which is treated as sacred.

· Respect, but monitor, your child’s privacy.

· Discourage reconciliation fantasies. Avoid dinners, outings, or holiday celebrations with your ex-spouse; they only fuel your child’s fantasies. Instead, emphasize the finality of divorce

· Be sensitive to children signs of depression and fear. Seek professional help if depression is prolonged or intense.

· Help non-custodial parent stay involve. Let non-custodial parent maintain a regular presence such as a phone call several times each week, messages sent on video or audiotapes.

· Plan a schedule of time for children to spend with their other parent. Be supportive of children’s ongoing relationship with the other parent. Remember that children generally fare best when they have the emotional support and ongoing involvement of both parents.

 

Source: Georgia Family Law Blog

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Sooner or later, many families face the prospect of moving. Disruptive as moving can be for parents, the experience can be even more traumatic for kids, who may not be a part of the decision to move and may not understand it.

Kids may need some time and special attention during the transition. You can take steps to make the entire process less stressful for everyone.

Making the Decision to Move

Many kids thrive on familiarity and routine. So as you consider a move, weigh the benefits of that change against the comfort that established surroundings, school, and social life give your child.

If your family has recently dealt with a major life change, such as divorce or death, you may want to postpone a move, if possible, to give your child time to adjust.

The decision to move may be out of your hands, perhaps due to a job transfer or financial issues. Even if you're not happy about the move, try to maintain a positive attitude about it. During times of transition, a parent's moods and attitudes can greatly affect kids, who may be looking for reassurance.

Discussing the Move With Your Child

No matter what the circumstances, the most important way you can prepare your child is to talk about it early and often.

Try to give your child as much information about the move as soon as possible. Answer questions completely and truthfully, and be receptive to both positive and negative reactions. Even if the move means an improvement in family life, kids don't always understand that and may be focused on the frightening aspects of the change.

Involving kids in the planning as much as possible makes them feel like participants in the house-hunting process or the search for a new school. This can make the change feel less like it's being forced on them.

If you're moving across town, try to take your child to visit the new house (or see it being built) and explore the new neighborhood.

For distant moves, provide as much information as you can about the new home, city, and state (or country). Learn where your child will be able to participate in favorite activities. See if a relative, friend, or even a real estate agent can take pictures of the new house and new school for your child.

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Certified Divorce Financial Analysts™ offer their best tips to help you avoid some of the most common mistakes made by divorcing people.Edited by Diana Shepherd, CDFA

Understand your financial and emotional limits.

When you understand yourself, you are better equipped to be objective. This saves time, which leads to cost savings. If you are not prepared to look at reality – without the emotional entanglements – the outcome will never be what you need, let alone what you want. Instead of asking "why" questions, which lead to people becoming defensive, try asking questions that start with "how." For instance, asking, "How did you come to that conclusion?" leads to a discussion about process. It allows both people to step back from the brink and look at things as they are.

Armand D'Alo (CFP® and CDFA™) of Oak Tree Advisory Services has worked as a financial analyst in private practice for more than 25 years. Located in Carlsbad, CA, he holds a degree in finance and family counseling from Brigham Young University. He can be reached at info@oaktreeadvisory.com.

Settle out of court.

When given the choice to settle at mediation or settle at trial, always try to choose the former for two reasons. First, going to trial is very expensive: typically, the only ones who win are the lawyers and experts, which leaves a smaller "pie" for the divorcing husband and wife to divide. Second, going to trial is risky because all of the decisions are left to the judge who has known the parties for a few hours at most; in mediation, the divorcing parties still have 100% control over how things will be settled (assuming they can come to an agreement).

Joseph P. Mirandi (CPA, CVA, CDFA™, MST) devotes a large portion of his practice in Lakeland, FL to assisting lawyers and their clients in divorce-related matters. He also has an extensive tax practice, and is certified in preparing business valuations. He can be reached at (863) 607-4222 or via www.huttomirandi.com.

Know what you have and what you need.

It is very important to know what assets you own, the value of those assets, and how they are held. This should cover everything from retirement to investment to bank accounts, as well as future pensions and social security. Make copies of your and your spouse's tax returns. These returns can help explain to a financial advisor a lot more than your income and taxes paid: they can help find assets, capital gains and losses, depreciation, and business expenses. The tax returns are also helpful in uncovering assets that a spouse might have hidden.

Before splitting your assets, you should think about what you need: you must create a budget, identify which assets will help ensure your financial security, and negotiate for this.

Jim Newman (AWMA, CSA, CDFA™) is the Senior Vice President – Wealth Management at Janney Montgomery Scott in Ponte Vedra Beach, FL. He can be reached at (866) 226-9935.

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Recently from the San Francisco Family Law Blog

With more than 50 percent of marriages ending in divorce, dealing with custody, splitting up property and paying alimony are realities that some families must deal with.

Of course, they are also serious issues of contention that can often cause financial hardship to one or both parties involved.

"The harsh truth is all relationships end, be it divorce or death," said Cheryl Bernstein, a financial planner for Financial Essentials. "At some time or another, and you need to know where your money is."

There are many financial issues, ranging from tax implications to determining assets, that come into play during a divorce.

However, it's only a part of the story.

"In middle-size divorces, it's part of a case, but not all of the case," said Steven Chroman, a Valencia divorce attorney.

Money issues ranging from property distribution to spousal and child support all factor in and become issues, especially when a marriage has seen an increase in money for one or both parties.

Chroman said that in California, people are lucky, as in most divorce cases there are disclosure requirements, and people can hire accountants to be able to trace all property and assets and be able to determine tax implications.

Bernstein said it's important for both men and women to be financially educated and know where all their money and obligations are.

"Don't count on the other spouse," she said, because there could be case of needing to know where everything is.

Chroman said money can be manipulated, which is why it is important to have the right people available to handle what a person might forget during the course of a divorce.

In addition, in spousal support and monetary settlements, the parties have to be aware of all things that come up during the course of a marriage, and have "due diligence" in figuring out what is owned and managed.

Chroman said that although it is an unromantic ideal, a pre- or post-nuptial agreement might help in protecting assets, such as an estate or trust that a person comes into a marriage with, and being able to keep that money after a divorce.

It's not just for the wealthy, either. He said that it is also a common practice in middle-class marriages.

"A lot of things can happen," he said. "People get divorced for crazy reasons, and it's a security device for both."

By Reina V. Slutske
Signal Business Writer

Source:  San Francisco Family Law Blog

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NEW YORK (AP) -- By the numbers, divorce just isn't what it used to be.

Despite the common notion that America remains plagued by a divorce epidemic, the national per capita divorce rate has declined steadily since its peak in 1981 and is now at its lowest level since 1970.

Yet Americans aren't necessarily making better choices about their long-term relationships. Even those who study marriage and work to make it more successful can't decide whether the trend is grounds for celebration or cynicism.

Some experts say relationships are as unstable as ever -- and divorces are down primarily because more couples live together without marrying. Other researchers have documented what they call ''the divorce divide,'' contending that divorce rates are indeed falling substantively among college-educated couples but not among less-affluent, less-educated couples.

''Families with two earners with good jobs have seen an improvement in their standard of living, which leads to less tension at home and lower probability of divorce,'' said Andrew Cherlin, a professor of public policy at Johns Hopkins University.

America's divorce rate began climbing in the late 1960s and skyrocketed during the '70s and early '80s, as virtually every state adopted no-fault divorce laws. The rate peaked at 5.3 divorces per 1,000 people in 1981.

But since then it's dropped by one-third, to 3.6. That's the lowest rate since 1970.

What's fueling that decline? According to 20 scholars, marriage-promotion experts and divorce lawyers consulted by The Associated Press, a combination of things.

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 Divorce & Social Security Benefits

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Just over two years ago, President George W. Bush signed the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005, which became effective Oct. 17, 2005. If you are getting divorced, this new bankruptcy law could concern you. Reason: While you may not realize it, in this country, our high divorce rate and bankruptcy commonly intersect.

Here’s how. Until the enactment of the BAPCPA, the bankruptcy process was seen by some, and used by many, as a tool to permanently evade (or, to use bankruptcy terminology, ‘discharge’) family obligations foisted upon them by agreement or court order after a marital dissolution. Plus, once a person filed a bankruptcy petition--for liquidation under Chapter 7 or reorganization under Chapter 13 (or, less commonly, Chapter 11)--he gained the protection of an ‘automatic stay,’ preventing creditors from taking any actions against him, his income or his property to collect their debts.

Perhaps even more important than the means test and mandatory financial management education is the fact that BAPCPA has made it much more difficult for debtors to shirk domestic relations responsibilities. Unlike the old law (BRA) which, as amended in 1984, allowed debtors to discharge nonsecured property settlement obligations to former spouses (think payouts for businesses, professional practices, or other assets distributed in a divorce), the new law forbids this. Now, any domestic support obligation ‘DSO’ becomes a ‘first priority claim,’ ineligible for discharge.'

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Child-rearing is often a sensitive and complicated issue for couples, and many argue about just how to properly raise their young. But for children, major parental disagreement is a source of mixed messages and confusion that may undermine the attitudes, values and behaviors parents hope to teach. Stacy DeBroff, president of the popular parenting website Momcentral.com, offers smart solutions on how to keep chaos at bay.

Parenting disagreements? Threatening the well being of our marriages and our kids? Yep, welcome to the brave new world of today's parenting: with shifting social roles for Mom and Dad, pressure to raise fabulous kids while supposedly being their best friends, and strong parenting preferences by both Mom and Dad.

When most of us were growing up, Mom and Dad held more traditional roles, with Mom typically a housewife and Dad the breadwinner and stern disciplinarian. "Just wait until your Father gets home!" my brother and I got warned on a daily basis. Not so today, as Moms announce in the kitchen, "I do not care what your Dad said! There is no macaroni and cheese for breakfast in this house or TV after dinner. Period." For men and women alike with children, parenting has emerged as a primary focus. And along with the laser-like focus on children has emerged a virtual cauldron of boiling and brewing parental disagreements.

Trend spotting helps here to see the shifting in parenting styles. Long gone are those June Cleaver days when women considered themselves first and foremost as "housewives." Moms are focusing on being "stay-at-home Moms," we have entered the workplace in record numbers, and Dads have become the most involved parents in history. Plus, ask most Moms and Dad and they will announce how they want to be "best friends" with their children. So much for children being seen and not heard!

When Mom and Dad disagree over even minor parenting issues: the repercussions echo throughout the whole next day and the whole family. For instance if Dad lets the kids stay up way past bedtime, you have Mom at home with an entire day of dealing with a grumpy, tired, unhappy kid or one who resents your more stringent rules. Or it's the working Moms who get reports from a babysitter, the preschool, the teachers, and the after-school about a tired child who is acting out. As parents, Moms rely on having a united front.

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Burden of proof of stalking for order of protection. Thomas Schwalm, Respondent v. Lori Schwalm, Appellant, No. 87829 (Mo. App. E.D., March 20, 2007), Richter, P.J.
  This case is instructional to the extent it discusses the failure of proof that required the reversal of the judgment for an order of protection.
  Husband sought an order of protection where the evidence showed that wife knocked on husband's door multiple times, once blocked husband's vehicle in a parking lot, followed him to work on occasion and once approached him at a gas station. That sounds like stalking, except for one crucial element. “While the statutory definition of stalking requires alarm (in the victim), a plaintiff is required to do more than simply assert a bare answer of 'yes' when asked if he was alarmed. A plaintiff must show that a defendant's conduct caused him fear of danger of physical harm as stated in the statutory definition of alarm. See Section 455.010(10)(c).”
  Note: A similar case was just reported for the same proposition: Clark v. Wuebbeling, No. 88413 (Mo. App. E.D., March 20, 2007), opinion also by Judge Richter.

Identical twins yield identical paternity tests. 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, No. 27188 (Mo. App. S.D., March 14, 2007), Garrison, J.
  This was a paternity action in which twin brothers were having sexual relations with the eventual mother of a child for whom child support was sought. The brother named as the father appealed on the basis that the burden of proof of his paternity was not met because of the results of DNA testing of both brothers. The results were identical.
  Held: Affirmed. When competing tests for paternity show two potential fathers, the court must look to the nongenetic evidence to determine if there is a preponderance of evidence of the identity of the father. Here, the mother's testimony established that appellant was the only one of the two who could be the father.

Disqualification of guardian ad litem in modification action. State of Missouri, ex rel. Larry Dreppard, Relator, v. Hon. Phillip Jones, Com., and Hon. John Essner, Respondents, No. 89214 (Mo. App. E.D., March 6, 2007), Norton, P.J.
  A motion to modify was filed and the trial court re-appointed the guardian ad litem (“GAL”) from the dissolution of marriage action. Within 10 days of that appointment, father asked for the disqualification of the GAL. The request was denied. Father now seeks a writ of mandamus compelling the trial court to grant the motion to disqualify.
  Held: Writ made absolute. Section 452.423.1, RSMo provides that each party has a right to one disqualification of an appointed GAL if requested in a timely manner (within 10 days of the appointment). The trial court viewed the motion to modify as a continuation of the original dissolution action. However, the opinion notes “… that by 're-appointing' the GAL following the motion to modify, the court recognized that the modification proceeding was independent from the original dissolution proceeding. Otherwise, no appointment would have been necessary.” Since the motion to modify is deemed by the rules to be an independent proceeding, the parties had a right to disqualify the GAL.

Pension benefits and disability payments. Sandra Ray Coffman, Respondent v. Elvin Cale Coffman, Appellant, No. 66204 (Mo. App. W.D., February 27, 2007), Ellis, J.
  In this dissolution of marriage action, the parties were married in 1982. At that time, husband had worked for General Motors for approximately 4 ½ years. He continued that employment until December 2002 for a total of 24 years. Earlier that year he had been admitted to a psychiatric hospital and his father was named as his guardian and conservator by the probate court. He was 45 years old as of his last day at General Motors. He had received disability payment from General Motors and eventually qualified for Social Security disability benefits, too. He qualified and was ultimately receiving disability benefits from General Motors. The trial court determined that all but the pre-marital years of credited service were marital property having been accumulated during the marriage. It was divided equally between the parties. Husband appealed.
  Held: Reversed. The court of appeals determined from the evidence that the only reason the husband had begun receiving benefit payments was because of his disability. Otherwise, he would not be eligible for pension benefits until reaching retirement age under the plan. Further, the terms of the General Motor benefits provided that husband would receive the disability payments based on his years of service until either he reached age 65 (retirement age) or became capable of gainful employment. After age 65 the benefits would revert to being pension benefits in character. Thus, the benefits he was and would later be eligible for were partially marital and non-marital in character. The opinion notes that disability benefits are not marital property “… if they serve as a substitute for earnings lost due to the recipient's inability to work. In re: Marriage of Thomas, 21 S.W.3d 168,173 (Mo. App. S.D. 2000).”
  The case was remanded for a determination of which portion of the marital portion of the benefits will be awarded between the parties and to award husband the non-marital portion thereof.

Order of protection between brothers-in-law. Terry Pratt, Respondent, v. Chuck Lasley, Appellant, No. 65992 (Mo. App. W.D., January 16, 2007), Ellis, J.
  The two parties are brothers-in-law because they are each married to women who are sisters. Respondent was found to have assaulted the Petitioner and an order of protection was entered. The Respondent appealed asserting that the definition of family member in the statute (§455.020.1) did not apply since there is no blood relation between them.
  Held: Affirmed. “Had the legislature intended to limit the statute's applicability to those 'of kin' or related by cosanguinity or direct affinity as proposed by (respondent), the legislature would have used those terms in the statute.
  “The plain and ordinary meaning of the phrase 'related by marriage' includes one's brother-in-law.”

Source for Post:  The Missouri Bar

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One very important, and often overlooked, factor to consider as part of your dissolution of marriage is a re-evaluation, (or first evaluation as is often the case) of your estate plan.   If there is no plan in place, the laws that will determine how your estate will be divided upon your death change significantly when you are divorced.  If there is a plan in place, you will most certainly want to make changes for your future to match the changes in your life today.  Below are some very basic points on estate planning from about.com:

If you have assets, no matter what your age, marital status, or financial wealth, you should plan your estate in the event of your death or incapacitation. If you should die without a sound estate plan, someone will be exposed to additional grief and expense. If you become incapacitated, your bills might not get paid. You could also be put on life support which is OK unless you have strong feelings about your life being prolonged artificially if you have no chance for recovery. A little preparation and maintenance could make this difficult time less taxing for those you love and who love you.

There are many reasons to have a sound estate plan but here are eight I feel are most important. If you should die or become incapacitated, a sound estate plan could:

1. save your family thousands of dollars
2. distribute your assets to those of your choosing, not of the government's choosing
3. designate who will raise your minor children
4. make sure someone is authorized to pay your bills
5. avoid conflicts among your family members
6. make sure your assets aren’t divided among your children’s ex-spouses
7. keep your children from frivolously spending the inheritance
8. prevent death taxes.

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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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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