divorce

Divorce or Legal Separation: Pros, Cons, and Differences

October 17, 2019 by Guest Contributor Leave a Comment

It can be difficult to see where to go when your marriage is in trouble. All options can seem daunting or set in stone, and each relationship is unique. When a marriage is seemingly beyond repair there are two main options for the couple: divorce or legal separation. Divorce is largely for couples who see no opportunity for repairing their relationship, while separation, legal or otherwise, gives the couple an opportunity to try and repair their marriage with the assistance of distance. If you’re looking into options for how to proceed with your relationship, it’s important to understand the implications of both options.

Legal Separation

There are various degrees of legal separation, from separating living spaces and finances to dividing areas of shared living space and filing joint taxes, but the process is often similar to that of filing for divorce. While the process varies from state to state, legal divisions of assets consistently need to be approved by the court. Even if it is not required by the state, having legal assistance while dividing property and assets is highly recommended. It should also be noted that legal separation is required by some states before the divorce procedures can be completed.

Pros

The benefits of legal separation change from couple to couple, and what works for one couple might be disastrous for another. Legal separation can give the couple some space to sort out their problems, it can provide a non-permanent solution for couples who still love each other, and it can help both parties maintain benefits. Some employer-provided health insurance will cover legally separated spouses. Military benefits often extend to separated spouses, as well. Some may receive tax or social security benefits if they remain married, but these are best researched by each couple individually, as tax laws surrounding this area are complex.

Cons

Legal separation can be complicated, with all of the difficulties of divorce without all the court-mandated guidelines for life after separating. This means that child custody decisions might be slowed down or made more difficult without court-mandated mediation, along with other aspects of property divisions. Should the separation have no end in sight, whether the end is repairing the marriage or filing for divorce, the parties would not be legally allowed to remarry.

Divorce

Divorce, or absolute divorce, describes the legal termination of a marriage. It requires legal action and court approval. A number of problems in a marriage can lead to divorce, including but not limited to:

Having different values regarding money
Getting married without thinking through the implications
Infidelity
Different values regarding parenting
Abuse, physical or sexual
Substance abuse

All states offer no-fault divorce, meaning no one party will be legally blamed for causing the grounds for the divorce. 33 states currently offer options for filing for divorce with at least one party being at fault.

Pros

If the relationship is over, it is better to end it and move on than to separate but hope something comes back. Both parties will be legally allowed to remarry and will no longer have to file joint taxes. Couples without children can move on with their lives without ever needing to speak again if that’s what they want.

Cons

Filing for divorce can be time-consuming. If your state requires a waiting period or period of legal separation, it could easily take over a year before you even begin filing the serious divorce paperwork. Mediation on child custody cases are often required, and topics of alimony and child support are keeping the family law business alive. Absolute divorce will also cut off dependent spouses from social services they may rely on, such as military benefits. Just because you’re getting divorced doesn’t mean you don’t still care about your spouse.

Marriage is a commitment that isn’t always beneficial for those involved. This is why divorce rates rise during periods where couples tend to spend more time together. Divorce and legal separations are serious decisions and shouldn’t be taken lightly, but should be considered if your marriage is feeling damaging.

Things to Keep in Mind During a Child Custody Case

September 26, 2019 by Guest Contributor Leave a Comment

Divorce is a stressful and complicated time, made more complicated when child custody is involved. Tensions can run high and it can be difficult to reach a mutually beneficial agreement out of court. Here is a rundown of what to keep in mind when involved in a child custody case.

Types of Custody

Custody can often be split into two non-mutually-exclusive types: legal custody and physical custody.

Legal custody allows the parent to be a part of major decisions in their child’s life, such as their education, health, and religion. Legal custody is often shared by both parents, and allow both parties to be a part of the child(ren)’s life. Mutual legal custody is optimal in most divorce cases.

Physical custody relates to permanent residence and parental access to the child(ren). Physical custody can be partial, shared, or sole, and has a number of determining factors relating to the health, education, and disposition of the child(ren). Physical custody can be denied to a parent while legal custody is still allowed, but this is not ideal in most cases.

Determining Custody

The process for determining custody can be straining, especially if both parents want sole physical custody or are unhappy with shared custody. This can make taking a custody case to court seem inevitable, even though settling out of court tends to be better for the wellbeing of the family. Despite the general preference for out of court settlements, both individual and in court decisions can benefit the family.

Out of court decisions are better for families with uncontested decisions. They allow the papers to be filed faster and for the family to move on more easily. Some states and counties may require at least one mediation session to ensure both parties fully agree with the settlement they have written before presenting to the court. Classes on how to respond and interact with your child(ren) after being divorced may also be required.

In court decisions are required when a settlement cannot be reached between the parents. This may be because one or both of the parents are accusing the other of being unfit to be the primary custodial parent of the child(ren). The judge, when faced with such disagreements, will decide which parent is to get primary custody and may restrict the visitation rights of a parent they see as unfit to provide a safe environment for the child(ren). Factors the judge may consider include whether a parent is actively using and/or abusing substances, has been convicted of a violent or child-related crime or has been accused of parental alienation. If none of these are relevant factors, the court will look into individual relationships both parents have with their child(ren), ability to provide, geographical location, and the child(ren)’s personal preferences.

Parent Plans

Parent plans are mutually agreed upon terms as signed by the parents and the court. They are in-depth plans of where the child(ren) will spend weekdays, weekends, holidays, and birthdays. They are also known as child custody arrangements and should be followed and respected unless a variation is mutually agreed upon by the parents. Having a written down plan and having both parents follow that plan will help to ease tensions and let the family continue with their new life.

Child Support

As of the 2010 census, the average monthly child support payment was $430. The individual amount decided on by the court and the parents will be dependent on factors such as their ability to provide, the cost of living in the region, and the amount of physical custody the parent has. Child support must be paid, and if the parent responsible for paying does not provide it for an extended period of time, legal action can be taken against them.

When going through a child custody case, it is important to keep the best interest of all parties at heart. It is easy to get caught up in a battle of who deserves what and who is at fault when the focus should be the best outcome for the child(ren). A good family lawyer will help keep discussions on track while also fighting for the most mutually beneficial outcomes for their client as well as the child(ren).

Why is Summer the Most Common Season for Divorce?

August 27, 2019 by Mike Nason Leave a Comment

Summer: the season of watermelons, long days at the beach, fun family trips, and something unexpected—divorce. Surprisingly, new research out of Washington state claims that summer is the most common season for divorce. By analyzing annual trends, experts have come to understand what makes people more likely

What the Research Says

A study conducted by University of Washington sociologists looked at divorce trends in Washington state, finding that divorce filings increased substantially in both August and March. These dates are in line with school breaks and holidays. During this time, couples often spend more time together, which often highlights issues within the marriage and leaves both spouses thinking about their options. Family vacations and holiday trips, which take families out of their school and work routines, often make it all too easy for unhappy spouses to notice and reflect on their partner’s shortcomings.

How to Prepare for Divorce

While spring and summer breaks may be a significant source of stress for those in unhappy marriages, it’s important to take your time, consider your options, and prepare for the next step—whether or not that next step is divorce. Waiting until a marriage has reached the point of no return can lead to rash decisions, a rush to find legal representation, and animosity on both sides. If you think divorce may be inevitable, get everything in order before making a final decision. Schedule appointments with a divorce attorney and your financial advisor. It’s good to have an idea of how much debt you have, how much equity you have in your home, and the value of any other assets you may have.

If you want a divorce, it’s important to communicate clearly and openly with your partner. This discussion should be had when both parties are calm, rather than during the middle of a heated fight. While divorce is never easy, you can take steps to make it less painful for everyone involved.

Protecting Your Children

Children are one of the most common reasons that couples hold off on divorce. There’s no doubt that divorce can be traumatic to children, but in many cases, it’s less traumatizing than living in an unstable household with unhappy parents who are always fighting.

Working with a divorce attorney and going through mediation with your soon-to-be-ex-spouse can help you act in the best interests of your children. Many divorcing couples have chosen to move away from the traditional adversarial divorce model in which everything from custody to asset division is used to try to get revenge on the other party. A solution-focused divorce model allows both parties to advocate for their rights during the divorce process while maintaining open communication and laying the groundwork for a strong coparenting relationship.

The Benefits of Legal Counsel

Even if you and your partner are on the same side regarding how you want to proceed with the divorce, it’s crucial to hire competent legal counsel. An experienced divorce attorney can explain the long-term implications of any agreements or concessions you make during the divorce process, allowing you to make more informed decisions. If there are areas where you and the other party cannot come to an agreement, allowing divorce attorneys to do most of the difficult negotiation allows you to minimize your direct involvement and preserve your coparenting relationship.

Dedicated legal counsel can also save you a considerable amount of time during the divorce process. Divorce is a complicated legal process that requires a substantial amount of paperwork and documentation, which can be difficult to manage on your own if you’re also moving, learning to parent on your own, and juggling work responsibilities.

Court Battle Over $10,000-per-Month Alimony Payments as Ex-Wife Remarries in Church Ceremony

May 30, 2019 by Mike Nason Leave a Comment

Alimony, also known as spousal support, is one of the most controversial topics in many divorce cases. If a partner makes sacrifices to support the other person’s career or gives up their own career to raise children, they may be entitled to support after the termination of the marriage. However, a growing number of states have started to phase out long-term alimony, choosing instead to award alimony for a set period of time that gives the lower-earning spouse time to advance their education and get to a higher earning level. In the case of James Lueck and Karen Lueck, alimony was awarded for a period of 10 years.

The End of a 29-Year Marriage

After 29 years of marriage, James and Karen Lueck divorced in 2014. Their original divorce degree required James to pay his ex-wife $10,000 per month for a period of 10 years—unless she remarried. If Karen was to remarry, James could terminate his alimony payments.

In 2017, Karen Lueck had a religious ceremony with her partner. The pastor at First Congregational church in Traverse City united the couple in a religious marriage ceremony. There was no marriage license. Though Karen and her partner said vows and exchanged rings, they did not legalize the marriage.

James Lueck took issue with this. He called his ex-wife’s actions manipulative and fraudulent, claiming that she intentionally chose to avoid a legal ceremony to maintain alimony payments. He alleged that she was trying to present herself as married to the community. James took the dispute to court.

The Court’s Initial Decision

Initially, Judge Lisa Gorcyca agreed with James Lueck’s interpretation of his alimony obligations. She terminated alimony payments because Karen Lueck’s actions appeared “to defraud the court and circumvent the parties’ consent judgment of divorce.” James subsequently stopped making alimony payments to his ex-wife.

The Legal Definition of “Marriage”

This entire court battle comes down to one question: what is the legal definition of marriage? Karen Lueck clearly believed that only a legally-binding marriage could end her ex-husband’s alimony payments, while James Lueck and Judge Gorcyca felt that a religious ceremony met the court’s definition of “remarriage.” After Judge Gorcyca’s initial decision to end James Lueck’s alimony payments, Karen Lueck appealed the decision with the Michigan Court of Appeals.

Going Through Appeals

The Court of Appeals determined that Judge Gorcyca made an error in judgment when she decided that Karen Lueck’s religious ceremony met the legal definition of marriage. Per the Court of Appeals, the term “remarriage” is crystal-clear: it refers only to marriages in which the couple gets a marriage license as required by state law. They reinstated James Lueck’s alimony obligations. Assuming Karen Lueck does not legally remarry, alimony payments must now resume for the rest of the 10-year period following their divorce.

What This Means for Others Paying Alimony

Public opinion is divided over this case. Some believe that the decision illuminates the separation of church and state, since a religious ceremony does not meet the requirements for a legal marriage. Others feel that the decision is disrespectful to high-earning spouses who are forced to continue financially supporting their ex-partners long after divorce.

This decision is not a substantial deviation from previous court decisions regarding alimony. In essence, a religious ceremony that isn’t followed by a legal marriage certificate is the same as a long-term relationship that never progresses to marriage. While some alimony agreements allow for the termination of payments when the ex-spouse begins living with another partner, many specify that payments will only be terminated early if the other party remarries. This Michigan Court of Appeals decision simply reaffirms what has been clearly laid out in divorce judgments across the country.

What About Fluffy?: Custody of Pets in Divorce

May 28, 2019 by Mike Nason Leave a Comment

Those who own pets know the deep bond that you can form with an animal—and unfortunately, too many know the pain of being separated from a beloved pet during divorce. In most states, pets are simply treated as property during a divorce. The court may look into who purchased the pet, whose name is on the microchip, and who has previously paid for veterinary care. However, most states do not look at the well-being of the pet; pets are simply treated as another asset to be split up.

This is changing in several parts of the country as more and more states introduce laws outlining how the court should consider pets during divorce cases.

Pennsylvania Gets Ready to Protect Pets

Pennsylvania legislators recently proposed a law that would change how courts view animals. When choosing who should receive guardianship of a pet, the court would look at a wide range of factors, including:

Who provides the majority of the pet’s daily care
The source of the pet’s social interaction
Financial ability of each party to support the pet’s needs
Who covers the expenses of veterinary care
Whether or not the animal was acquired during or prior to the marriage

H.B. 1432 has received substantial support from legislators, who recognize that treating animals as property often leaves their needs unmet. In the past, divorcing spouses could agree on a custodial agreement in court. If one spouse later chose to stop following the agreement, though, the court would not enforce the terms of the agreement, rendering it useless.

If this law passes, it could benefit divorcing parties who prioritize custody of their pet over the financial assets of the marriage. This occurs in a surprising number of divorce cases. Rather than having their love for their pet exploited for the other party’s financial gain, pet owners can feel confident that the court will consider the pet’s needs while determining who receives guardianship.

However, Eric Gibson, a divorce attorney with a family law firm in Pennsylvania offers a counterpoint. “Divorces are already complicated enough given the emotions involved,” said Gibson. “Counseling clients through the process often requires helping them separate the emotion from the case. Given the no-fault aspect of divorce and the factors for equitable distribution, divorces have largely been reduced to something akin to a business transaction that focuses on the economics of the parties. This is a good thing.”

“While animals can cause a point of contention, in my experience, in the end the party who truly wants the animal and is capable of caring for it is ultimately awarded the animal. Rarely have I had a case where the parties cannot reach agreement on the pets. Adding this as another component, in my view will only serve to create more problems, more ability for the parties to fight over difficult and subjective determinations like the ‘source of the pet’s social interaction.’ When litigation is made more complicated, it typically means more expense. More chance for the case to end up in court versus being settled.”

California, Illinois, and Alaska: Pioneers in Pet Custody Law

The proposed law in Pennsylvania is fairly similar to those passed in several other states, including California and Illinois. In early 2019, a new California law designed to find the middle ground between pets as property and pets as children went into effect. The law established special assessments to determine who receives pet guardianship when both partners claim ownership. The law looks at questions similar to those in Pennsylvania H.B. 1432, including “Who walks the dog?” and “Who takes the pet to vet appointments?” If appropriate, the court may even decide to award joint guardianship to the divorcing spouses.

The Illinois law is slightly older, dating back to 2017. The law puts guidelines in place for the treatment of animals that are marital assets. Rather than simply giving the pet to one spouse or the other, the judge can look at a number of guidelines to figure out what best serves the needs of the pets. This legislation mirrors a law passed in Alaska.

What Other States Say

While most states still look at pets as property, the tide could be turning. A growing number of divorce cases involve disputes over pet ownership, and legislators in many states have started to realize that it is inhumane to treat pets the same way you would jewelry or a retirement fund during divorce. Some experts expect a rush of pet guardianship laws to reach legislative floors in a number of states in coming years. In the meantime, divorcing pet owners should feel empowered to advocate on their pet’s behalf and fight for them to get the best care possible.