Divorce and the Economy

I was home Tuesday morning waiting for a repairman when I caught the "Today" show on NBC. One of the speakers was a prominent divorce attorney discussing the state of divorce these days, especially given the economy. The other issue was use of electronic evidence during a divorce especially when child custody is an issue.

The conclusion was that the economy has a temporary affect on the divorce rate. Tough economic times tend to make people stick together. Isn't it always easier to support one household on two incomes rather than two households on two incomes? The divorce rate is likely to emerge from stagnation once the market begins doing better.

As for electronic evidence, the program focused on the Christie Brinkley divorce trial. As you may know, Brinkley's attorneys are using her husband's past behavior, which includes visits to pornographic websites, to argue he is an unfit custodian.

While using such evidence is not new, it still often goes unnoticed . . . . or unrecognized by those engaging in such behavior.

New Attorney Joins Sullivan & Ward, PC

I am pleased to announce that Samantha Kain has joined our law firm. Samantha graduated from Drake Law School in December 2003 and brings a wealth of knowledge to Sullivan & Ward's practice areas. Samantha has experience in handling family law matters, criminal defense, estate planning and real estate transactions.

Samantha's direct dial is (515) 247-4711.

Job Perks A Marital Asset?

New Jersey's former governor, James McGreevey and his wife Dina Matos McGreevey are in the middle of a divorce. Some of you might recall that Former Gov. McGreevey announced several years ago during his term that he is a "gay American" resulting in the unraveling of his marriage. Although only married since 2000, Matos McGreevey is seeking alimony. The issue in today's hearing was not whether she is entitled to alimony but whether she is deserving of compensation for losing out on perks of her husband's job — state police transportation and a 24/7 security detail, a household staff and use of two beach houses — because he resigned 13 months shy of completing his first term.

McGreevey maintains that perks of the governor's office are not a marital asset.

In Iowa, one's job perks can be considered as a factor in determining (upward deviation from guideline amount) child support or alimony by looking at the cash value or the savings to the receiving party. Perks I have run across usually include paid cell phone, car allowance, gasoline, and country club memberships - not state security and use of summer rental homes. The McGreevey case is interesting because it involves perks that would have come to fruition if Gov. McGreevey served his entire term; they are not perks he currently receives.

Luckily the couple agreed on the important stuff ahead of time: custody of their 6 year-old daughter; however, the agreement remains sealed.

Stability Helps Children of Divorce

I just finished up a modification trial today regarding child custody. As an attorney, I strive not only to represent my client but when the case involves the children, my duty also includes thinking about how the outcome could affect them as well. A recent article on Newswise and included in the Journal on Marriage and Family reported that for children of divorce, what happens after their parents split up may be just as important to their long-term well-being as the divorce itself.

A new study found that children who lived in unstable family situations after their parents divorced fared much worse as adults on a variety of measures compared to children who had stable post-divorce family situations. “For many children with divorced parents, particularly young ones, the divorce does not mark the end of family structure changes – it marks the beginning,” said Yongmin Sun, co-author of the study and associate professor of sociology at Ohio State University’s Mansfield campus. “A stable family situation after divorce does not erase the negative effects of a divorce, but children in this situation fare much better than do those who experience chronic instability”

The study compared children who grew up in three different situations including children who grew up in married households, children whose parents divorced before the study began but lived in a stable home, and children whose family situation changed once or twice during teen years.

Results showed that young adults who grew up in stable post-divorce families had similar chances of attending college and living in poverty compared to those from always married families. But they fared less well on measures of the highest degree obtained, occupational prestige and income. However, those who lived in unstable family situations after their parents divorced did worse on all measures. In fact, they fared more than twice as poorly on most measures compared to their peers who had stable family situations.

This study found that for those in stable post-divorce families, the difference in adult well-being was mostly due to a shortage of economic and social resources. Compared to always-married parents, divorced parents had a lower level of income, didn’t talk to their children as much about school-related matters, had fewer interactions with other parents, and moved their children to new schools more often.

These findings provide a clear message to parents: minimize disruption during a divorce and after.

When S/he Won't Pay

On May 20, 2008 a man from central Florida will stand in front of a Judge and possibly be sentenced to five years in prison for failing to pay hundred of thousands of dollars in child support. Robert Abraham, age 65, pleaded guilty in mid-March to failing to pay $651,000 in child support for his three children. The charges marks the first time anyone in his county of residence has been charged with a felony for neglecting to make child support payments.

Often custodial parents face the same ordeal, although owing hundred of thousands of dollars is rare. In Iowa, the custodial parent can bring a contempt action in court for non-payment and each missed monthly payment may be the basis for individual counts of contempt. If the non-custodial parent has missed many months, the counts can add up (26 counts in a case I handled last year). The court can employ many remedies which are set out in the Iowa Code including forcing the non-custodial parent to post bond equal to months of future-owed payments, fines and jail time - up to 30 days for each finding of contempt.

Abraham further demonstrated his lack of intelligence when he declined to settle his $651,000 child support debt for $200,000.

Striking Back

Apparently there is now YouTube Divorce. In an effort to have the last salvo, Tricia Walsh-Smith (an actress and playwriter), posted a YouTube video in which she lashes out against her prominent soon-to-be-ex-husband, Philip Smith, president of Shubert Organization (the largest theater owner on Broadway). She spills intimate details of their marriage in an effort to leave a lasting imprint of humiliation.

Ms. Smith goes through their wedding album on camera, describing family members as "bad" or "evil" or "nasty," and talks about how her husband is allegedly trying to evict her from their luxury apartment. She also makes embarrassing claims regarding their intimate life, and then calls his office on camera to repeat those claims to a stunned assistant. Part of Ms. Smith's anger arises from a prenuptial agreement she signed. While the terms and conditions were not disclosed, one can assume from her behavior that she will get little, if anything, from her divorce.

This behavior teaches us two things: first, always have an attorney review any prenuptial (or antenuptial agreement for that matter) with you before you sign. While love is blind, money is not. Second, Ms. Smith's behavior, although envied by many who have gone through tumultuous divorces, may not sit well with a judge. Judges make decisions partly on a person's judgment. If Ms. Smith challenges the validity of the prenup, her recent YouTube escapade may have some impact on the ruling, especially her credibility.

Post-divorce Dating Jitters

MSN.com featured an article today, in first person might I add, about post-divorce dating jitters. Like most people, the author never thought she would find herself single again and on the "singles market." The article provides a real humanistic view toward the dating-again-phenomena going through self-doubts and anxiety.

I can't count on one hand how many clients during a divorce proceeding or immediately after it is finalized state "I will never marry again" or "no one will want me." The article teaches the reader that a little confidence tossed together with humility and humor results in a surprisingly pleasant experience.

Double Proxy Marriage

Ever wanted to get married but didn't want to attend the marriage ceremony? Think about moving to Montana where a double proxy wedding is permissible. The New York Times recently posted an article stating that Montana is the only state that allows a double-proxy wedding - that is - allowing a stranger (or acquaintance) stand up for both the bride and groom and enter into a civil marriage contract. Thus, the presence of neither the bride or groom is required.

This is common when both parties are in the military and stationed in different parts of the country. And it takes about all but a minute. The cost to the real bride and groom: $900, $50 apiece to the proxies, $100 to the judge, $150 to the lawyer (and witness); $53 for court fees; $14 for two certified copies of the marriage certificate; and the rest to a Pennsylvania couple who run a business facilitating proxy marriages.

Last year, the Montana State Legislature amended the law to require that one party in a double-proxy marriage be either a Montana resident or a member of the armed forces on active duty; however, the article noted that these Montana marriages are recognized in every state but Iowa.

Now if there could only be divorce by proxy. . . .

Money and Divorce

The Money Team at the Des Moines Register recently posted an answer to the following question:

Q: “I am about to get divorced after 25 years of being a wife and stay-at-home mom with no involvement in finances. I’ll get the house and a decent retirement fund, but I don’t even know where to start. Any advice?”

This is an extremely common question when individuals, after a long-term marriage, divorce. The Money Team gives sound advice: Look at a few basic financial areas: cash flow, short-term savings, retirement planning and asset protection. Understanding what money is coming in and going out can make a bigger difference in your lifestyle than what you received in the divorce.

I suggest that anyone going through a divorce take a look at this article. Scheduling an appointment with a financial planner as well as an attorney versed in Wills, Trusts and other testamentary instruments is also advisable especially if you had little involvement in family finances during the marriage. You may need some guidance to get through the rough beginning but a clear understanding of finances can make the long road easier.

Hiding Assets

Honesty may be the best policy for a successful marriage. But when it comes to divorce, couples are becoming increasingly devious in concealing their wealth from each other reports the Pennsylvania Family Law Blog.

One fifth of couples who divorced last year tried to conceal their assets or income from their spouse - a figure which has doubled since 2006 - a report has found. The study - by the accounting firm Grant Thornton, which surveyed 100 family lawyers - found that husbands were much more dishonest when a marriage crumbled.

In cases where assets had been hidden, 88 per cent involved men concealing wealth from their wives. Just two per cent involved women hiding assets. In the remainder of cases, both partners tried to conceal wealth from one another.

Family law experts say a spate of expensive, high-profile divorce cases, such as that of Sir Paul McCartney and his wife, Heather Mills McCartney, is spurring couples to hide their wealth from each other.

Andrea McLaren, the head of Grant Thornton’s matrimonial practice, said: ‘The number of couples hiding assets from one another has increased by 100 per cent since last year, which is staggering. Supposedly, men are seeing terrifying huge divorce settlements which are compelling them to hide assets.

In Iowa, you must, unless waived by court order, disclose all assets on an affidavit of financial status. While the affidavit is signed under oath, it does not guaranty full disclosure. Make sure you keep track of all marital and nonmarital assets during a marriage: this does not mean you are necessarily eyeing a divorce, but it is helpful when your spouse gets sick or passes away and is unable to carrying on his/her financial affairs.

Things Not to Do During Divorce

The Oregon Divorce Blog recently published a good post about what NOT to do during divorce. It points out that many pitfalls and traps await parties who are unfamiliar with the process noting that people often make bad decisions under stress, or without the guidance of an experienced lawyer and fail to educate themselves.

I agree, that by avoiding the following 10 pitfalls, you may get a better result. During your divorce, you should NOT:

1. Lie to your lawyer.

2. Lie to the court.

3. Involve the kids in the process.

4. Hide or fail to produce documents.

5. Refuse to cooperate with a court appointed expert.

6. Settle without analyzing your case.

7. Fail to try to resolve the case outside of court.

8. Take out your stress in unhealthy ways.

9. Be economically irrational in negotiations.

10. Be your own lawyer if your case is contested and your spouse is represented.

To read an explanation as to why you should avoid these pitfalls, click on the above-link.

London is Divorce Capital

Extramarital affairs are cited as the most common reason for divorce in the UK and Wales, accounting for 29 per cent of break ups, a survey revealed on Monday. "Mid-life" crisis are reportedly blamed for this increase. Family strains were reportedly the third most common cause of marital break-up.

Apparently Brits are hiring private investigators to trail suspicious spouses and go to great lengths to find out the truth, even though it hurts.

Sir Mark Potter, president of high court's family division, acknowledged that London has become "the divorce capital of the world."

Divorce & Your E-mail Inbox

USA Today published an article in yesterday's edition (2/14/08) about electronic messages promulgating a divorce or at least, being used as evidence. According to the article, about 88% of American Academy of Matrimonial Lawyers say they've seen an increase in the number of divorce cases using electronic data as evidence during the past 5 years. The evidence is being used to catch people in the midst of affairs and hiding assets, such as buildings, to avoid having to divide the same pursuant to a divorce proceeding.

Lawyers are also looking at MySpace and Facebook pages as well as electronic calendars and other computerized data. Also, spouses are "email snooping," that is, looking at a spouse's private email and text messages. Look at what happened to Detroit Mayor Kwame Kilpatrick--he and a former chief of staff are under investigation after a newspaper revealed contents of their text messages on city-issued paging devices.

The article notes that electronic evidence probably has not led to more divorces but makes evidence gathering easier. The upshot is: be a sleuth if you believe funny stuff is going on; be discreet if you are doing the funny stuff.

I Didn't Get My Child Support This Month!

The Iowa Court of Appeals recently reviewed what remedies are available when a parent fails to pay child support. In John Martin Farrell v. Iowa District Court for Polk County, the Iowa Court of Appeals annuled the district court's finding that a father was in default for failing to pay extracurricular activities but sustained a finding of contempt.

A parent refusing to pay child support or other support such as extracurricular activities (when required by the decree) is a common occurrence. In its decision, the Farrell court outlined the difference between "contempt" and "default." If a parent "willfully" fails to pay child support on time there is a good chance s/he will be found in contempt--or willful noncompliance with a court order. There are defenses to a charge of nonpayment of support as outlined in the Farrell ruling.

A court can also find that although the payor's behavior wasn't willful, s/he nonetheless contravened the decree and issue a finding of default, or a technical violation. Either way, both of these may be viable options if a parent fails to pay support in a timely fashion.

Full Disclosure Required in Prenuptial Agreements

Steve Worrall, who maintains the Georgia Family Law Blog, recently wrote about a unanimous opinion written by the Georgia Supreme Court's Chief Justice in Blige v. Blige, S07F1817. This case holds that the trial court did not abuse discretion in setting aside the parties’ prenuptial agreement, since the evidence supported the trial court’s finding that the husband failed to make a full and fair disclosure of his assets, income and liabilities prior to execution of the agreement.

The parties did not live together before the marriage and the husband actively hid the fact that he had $150K in cash in his possession when the parties signed the agreement.

In Iowa, prenuptial agreements are generally upheld; however, like the Georgia Supreme Court emphasized, there must be written disclosure of the parties' full financial picture prior to execution. In addition, to increase the legitimacy of a prenuptial agreement, it should be entered into well-before the big wedding day. For other tips contact a family law attorney.

Choosing Sides in Split Ups

What is your role as a friend when a close couple-friend breaks up or divorces? CNN.com ran an article today addressing this problem, primarily in the boyfriend/girlfriend break-up scenario. However, much of the advice applies to divorcing couples.

What should you do when you're friends with both parties? Where should your loyalties lie, and how can you avoid alienating either member of the couple? Sometimes distancing yourself from one or both until tension eases is a good solution. Sometimes buying the first round of drinks for the first-in line-first in time (a/k/a "I knew you first") friend is the trick. Whatever route you take, remember if there are children involved keep them protected. Make sure that any discussions regarding the other spouse/party is done outside the earshot (preferrably home) of the children.

Mediation: Good for the Family

In Polk County Iowa all litigants in family court, which include divorcing couples and couples in the middle of paternity, custody and support cases, must submit to mediation (unless they are able to resolve their case prior to the mediation deadline). In outlying counties either party may request mediation. Luckily, in Iowa, there are many excellent and experienced family law mediators.

In divorce and other family law mediations, a neutral facilitator will help you and your spouse (significant other) discuss needs and wants. The goal is to reach a mutually acceptable agreement without going to trial. The process is confidential. The majority of time the mediator is an attorney; however, effective mediators have other diverse backgrounds as well.

I am a huge advocate of mediation for the following reasons: Mediation is usually less expensive than a trial, preferred by judges, more satisfactory to the parties and fosters higher compliance. Most importantly, it allows both parties to retain control over case outcome.

Divorce and Credit Score

Daniel Clement, a NY divorce lawyer, recently published a good article on preserving your credit rating during a divorce. He reminds divorcing spouses that apportioning joint liability is not binding on a creditor; a creditor can attempt to collect the debt from either or both parties. Missed payments can have a deleteriuos affect on your credit score for years.

If you know a divorce is imminent, it may be wise to take action, as suggested by Mr. Clement, at least six months to a year before filing. This way, if and when problems start rearing their head, many issues will have already been resolved.

Bringing Children Around New Relationships

Recently, J. Benjamin Stevens, an attorney with the South Carolina firm of Stevens MacPhail posted a good blog on dating after divorce. Like Mr. Stevens points out, many of my divorce clients ask whether they can allow their child around a new boyfriend/girlfriend following a divorce.

While you may meet resistance from your new ex-spouse, having your child around a new girlfriend/boyfriend is permissible so long as s/he acts appropriately, doesn't have something in his/her past (such as a recent child abuse conviction) that is inappropriate, and the new person isn't there overnight. However, with respect to the latter, this may be more applicable in a new relationship before the child has time to adjust to the divorce and the parent's new relationship. There comes a point when overnights typically occur however, discretion and consideration for the child's feelings should be paramount.

Palimony - Cohabitants Not Entitled to Support

Once in a while an unmarried client meets with me to discuss whether s/he is entitled to the equivalent of alimony because of a recently ended long-term relationship. Often times the person invested in the family home, yet his/her name doesn't appear on its title, purchased furnishings, vehicles and other necessities to allow both parties an enjoyable lifestyle.

However, unlike New Jersey, where the New Jersey Court of Appeals Court recently issued a ruling awarding substantial palimony to a New Jersey woman, Iowa does not recognize such relief.

However, Iowa does recognize common law marriage (although the burden of proof is pretty tough). The fact pattern outlined in the New Jersey case may have been enough for an Iowa Court to find a common law marriage existed. The results are on a case-by-case basis.

Nonetheless, other remedies may be available to an Iowa resident in a similar fact pattern. Consult with your local family law practitioner to explore possibilities.

Divorce & Health Insurance

In this day and age one of the top concerns of divorcing spouses is health insurance coverage. Typically, one spouse carries the coverage making the other spouse dependent on the coverage. Since most employer-sponsored health coverage plans define a divorce as a "qualifying event" terminating coverage for the none-employee spouse, this is truly a concern.

Several options exists. First, the non-employee divorcing spouse should have 36 months of COBRA coverage available to him or her. This comes at a price though and the employer can assess the full cost of coverage, not just what the employee pays (which is usually subsidized by the employer) against the non-employee.

The other option is to ask the covered spouse to pay for COBRA coverage or pay a certain amount each month to cover the premiums. There are other options but these are the most common solutions. The Iowa Court of Appeals recently endorsed the aforementioned.

Other options exist. Contact a divorce attorney well-acquainted with Iowa divorce law.