Tag Archives: family home

The “Non-Divorce” Divorce

This past week, typically mindless commentary during a popular morning talk show caught my attention. All of a sudden amidst my morning routine, I heard words and phrases like “solution” and “cost-effective” and “best interests of the children” and… “divorce.” The host claimed there is a new phenomenon in which a married couple remains together, in almost every sense of the word, despite the fact that both desire a divorce. He referred to it as the “non-divorce” divorce. Supposedly, this trend is gaining popularity as the solution to a failed marriage.

The “non-divorce” divorce is a mutual verbal agreement between two married individuals who want to keep their marriage in tact, but fully accept that the relationship is over. The goal is to feel divorced while continuing to live together and not get a divorce. In other words, the couple does not want to go through the divorce process, but they don’t want to reconcile either. They don’t want to hire attorneys, file papers, argue over custody or support, lessen the time their children see either of them, or lose one-half of their financial assets. So, they decide to remain as if they are married. They live in the same family home as roommates, participate in their children’s lives as they had before they wanted a divorce, and maintain/preserve the marital estate.

Of course, most couples who attempt the “non-divorce” divorce are those who have children and/or those that have been married a considerable period of time and do not feel it is beneficial to disrupt the community on an emotional or financial level. Or at least they feel that the costs of a divorce clearly overshadow the costs of remaining together-even when there is no love left.

I cannot speak to the negative psychological effects that could result from this “solution.” However, I can certainly speak to the negative legal effects and problems that could arise.

First, if you never decide to separate in family law terms (that is, one party making a conscious decision that the marriage is irrevocably over and communicating the intention to end the marriage), there is never a date of separation. The “date of separation” is important in family law because it marks the end of the community. From that date there is no longer a collection of community assets or community debts-instead, a spouse’s separate property and debts begin to accumulate, as they did before marriage. Your spouse will continue to be entitled to one-half of all of your property and you will be liable for one-half of your spouse’s debt. Therefore, if you are both managing your finances separately without full disclosure and mutual agreement, you could be adversely affected. What’s more, your spouse will continue to be entitled to all benefits they were when you were happily married, including possible rights to the family home, life insurance, devises/gifts from a will or trust, and health insurance, to name a few.

The determination of a long term marriage (which can yield indefinite spousal support) is also associated with the date of separation. For example, if your marriage is eight years in duration, and you attempt a non-divorce for 3 years, followed by a real dissolution, the court’s characterization of the marriage as long term will probably be contested and require substantial litigation.

Living as financially independent roommates could also present a problem with expenses. Unless you agree to distribute both of your respective incomes in a way that benefits the community, one spouse may not have enough to support his or her lifestyle. Regardless, if you are still residing in the family home with your spouse, the courts will not grant any spousal or child support. Since you have avoided going to the courts entirely, a support award is virtually impossible anyway.)

In the same way, no child custody or visitation orders will ever be established. This means that after attempting the “non-divorce” divorce for a year or so, and after resorting to the real thing, a parent may have a hard time making a case that he or she should be the primary custodian. This is because even if one parent is the primary caregiver during the non-divorce, this fact will be hard to establish if both parents were living in the same home all the while.

For the aforementioned reasons, the non-divorce presents significant legal problems. Spouses who try this “solution” cannot be guaranteed that one spouse will not attempt to obtain a legal divorce down the road. If this occurs, a spouse will not be afforded some of the protections that a traditional divorce provides. In order to ensure that you make an educated decision, you should speak to an attorney who specializes in family law matters. He or she can point you to two potential solutions-a post-nuptial agreement or a legal separation. Both options will cost some amount of fees and time in mundane paperwork, but will allow you to live whatever lifestyle you want with protection and peace of mind.

Copyright (c) 2007 Law Offices of Donald P. Schweitzer

http://www.articlecity.com/articles/legal/article_964.shtml

Families Don’t Have To Be Ruined In Order To Get A Divorce

You are preaching to the choir when you outline the emotional and financial devastation that can be wrought on emotionally vulnerable couples who get involved in the adversarial system that IS divorce court. I was a child of a litigated divorce. I taught emotionally disturbed children from dysfunctional families for many years, I was a divorce attorney for eight years, and now I only do divorce mediation. Having witnessed our legal system from all sides, I can safely say that the whole context of how family disputes are settled in court today is not in the best interest of families. This is a call to arms. I am not even going to pretend this is an unbiased “news” article.

We who fight on the front lines on a daily basis, working with the emotionally vulnerable who feel as though the rug has been pulled out from under them know that the last thing a family in trouble needs is the “assistance” of counsel who could be throwing gasoline on the fire in order to line their own pockets. Most of you probably don’t know that family law attorneys are the ONLY kind of lawyers in California whose fees are statutorily protected by the equity in the family home. Divorcing couples may not be aware that they agreed to a lien on their homes and a possible forced sale at the end of the case when they sign their lawyer’s fee agreements. People need to know that they will get more and lose less by cooperating with their ex-partner than by litigating the matter.

Most people know what assets they have. No matter how much they earn, many people live paycheck to paycheck and there are usually no issues of hidden Swiss bank accounts. While this is the norm, any couple with equity in their home who both engage lawyers will soon see why the average contested divorce in our state costs $20,000 in attorney fees per side! And that is just an average. Most often, the higher the equity, the higher the fees. Read Charles Dickens’ Bleak House and you will see little has changed in the past 150 years.

First, the lawyers will engage in expensive discovery procedures, serving interrogatories and subpoenas for production of documents. There will be depositions and then the hiring of expensive forensic accountants and other experts, just to keep the case going. When couples trust their attorneys, it’s hard to see what is really going on. It does NOT have to be this way!

We need a groundswell of people demanding that the adversarial family law system be replaced with mediation. My own practice demonstrates what a sham the adversarial alternative is. I have a 100% track record with over 150 couples. When a lawyer has a powerful intention to help people find their bottom line fairly, efficiently and economically, cases settle without the expense, drama and irreparable harm to children and their co-parenting relationship, harm that is most always the result of a bloody and adversarial battle. Lawyers who are paid by the hour have no incentive to wrap it up. There is an inherent conflict of interest between the attorney, who wants to earn more money, and the client, who wants to save more money. When you are working on a flat fee, there is motivation to help couples come to a reasonable resolution without dragging it out.

Experienced attorneys know what the outcome of most cases will be. This is a community property state, and everything that falls into that category is evenly divided, and separate property is also well defined by statute. It just isn’t that complicated. Now there may be cases where a business requires a forensic accountant to value, but you don’t need to have a battle of the experts to testify why the husband or wife should get more or less money.

We have all seen the critical mass theory at work in our own lifetimes. For those unfamiliar with this theory, the simple explanation is that when enough people (thought to be somewhere between 3% – 5%) move in a certain direction, the rest of the population follows. Think I Pods, cell phones, recycling, health food, ending the war in Viet Nam, etc. It takes some time for the tipping point to be achieved, but whether it is 5% or 20%, at some point, when enough people get behind something, the change manifests throughout society. We can create a transformation in the way legal services are delivered not only in the area of family law, but all across the board.

Mediation is applicable to every area where people have disputes As with anything unfamiliar, it takes a certain amount of education to show people the possibilities before they are willing to get on the bandwagon. But if law schools taught would be lawyers to encourage cooperation when marriages break down, more and more couples will hear the message of peaceful divorce and not necessarily think that>

We need more divorce attorneys who take their responsibility to protect their client seriously. I have never understood how these “zealous advocates” can justify draining a client’s college fund for their kids so that the attorney’s child can go to private school while the client’s child is lucky to have lunch money. When people are informed and demand better than what is currently available, more and more law students will study mediation and develop a skill set that supports working with people who are breaking up.

It is my mission to help transform the way people get divorced in this country. I am asking you to join me in this crusade. Encourage your friends and family to work together if they have to get divorced. You can split a pie two ways or 4 ways. Which way will you get more? Do you really have to pull the child apart? Don’t you think YOU are in a better position to say how your child should be raised instead of lawyers, judges and other “experts.” You don’t want to start World War III with the parent of your children!!! Your child needs to be your primary focus, not how much money you can get out of paying or not being there when dad comes to pick up the kids. That kind of high conflict drama is totally unnecessary. Not only do consumers need to demand a new kind of divorce, but more lawyers need to recognize the damage caused to families by the legal practice as it is set up now. I hope more attorneys will walk away, as I did, and say, “NO MORE!”

We need judges to recognize who the most egregious of these attorneys are and sanction them, instead of holding them up to young lawyers to emulate. We need an informed public to tell their legislatures that it is NOT OK to give the Family Bar the right to drain the family home of equity through litigation that only comes to an end when there is no more money to be made. The system is broken, and we need to fix it. Generations of children have been caught in the middle of fighting parents who are often encouraged to fight by lawyers who stand to gain. The more we focus on and promote mediation as the rightful solution to family law issues, the more momentum we will build. Who is with me?

http://www.selfgrowth.com/articles/Families_Dont_Have_To_Be_Ruined.html

Divorce – Moving, Money, and Mortgages


Divorce can be a time of tremendous turmoil and upheaval. So many questions need answers and many decisions need to be made especially when it comes time to talk about the family home. Do any of these sound familiar?

o Do we sell the house and split the equity?

o Should one of us stay and the other go?

o If I am the one to go, how do I get my fair share?

o Can I afford to keep the house?

o How do I qualify for another mortgage on only one income?

These are common issues during divorce. Knowing what to do and where to find the answers can sometimes be challenging. If possible, speak with your spouse to iron out the emotional issue of your home. Then consult with your Attorney and Certified Divorce Financial Analyst to make sure that you are getting your fair share no matter what you decide.

There can be many factors that go into the valuing of the home for tax purposes, especially if you have been married for many years and have owned other residences as tremendous tax reforms have taken place since 1997. However, the old rules apply to properties owned before then. It is imperative that you to consult with a financial advisor who is versed in these matters before you finalize your divorce because relatively minor changes in the tax laws can significantly affect the tax results on the sale of your home, sometimes creating tremendous unforeseen tax bills.

If you have children, it may be helpful emotionally if they have a familiar place to come home to during, and for some time after, the divorce is final.

In considering your decision, start by looking at the monthly costs involved and see if it makes sense financially. Remember that you will need to add the total costs of the mortgage, taxes, insurance, homeowner’s dues and maintenance when doing your calculations. Many people forget to factor in the cost of a possible new roof a couple of years down the line or other household repairs that may be needed. This can be a costly mistake in the long run.

Since the home is an emotional asset, many times one spouse will give up other – sometimes times better – assets in order to keep the home without considering the true costs associated with keeping it. Unfortunately, that can lead to foreclosure if the spouse is no longer able to afford it after the divorce.

Also consider that your household income will likely be decreasing while your overall expenses may be increasing if you are subject to a court order for support. The decision regarding the family home is wrought with many issues.

If you decide to split the equity in the home you have several choices – you can sell it and share the proceeds (after the calculations regarding commissions, sales expenses and basis are factored in); you can refinance and pay your spouse with proceeds from cashing out some of the equity in the home; or you can use other assets such as cash, investments and retirement funds to “buy them out.” This decision can be extremely complicated and should not be done without consulting with your financial professional.

Getting a new mortgage can prove challenging, especially with one income. However, if you have good credit and income it should not be a problem. Many times child support and alimony are viewed as stable income if you have been receiving it for at least three months and it is projected to continue for at least three years.

Be aware that if your name is still on a mortgage you will be held liable for it if your ex defaults, even if the divorce decree states that you are no longer responsible. Divorce courts do not have the power to wipe out your obligations to credit card or mortgage companies. Make sure that your ex-spouse makes good on any debts that still have your name attached. A better strategy is to pay off all joint debts before the divorce is finalized.

A good mortgage broker can provide information about how to contact your mortgage company and request a “Qualifying Name Delete Assumption.” This process allows the current loan to remain unchanged, but relieves the non-occupying spouse of further liability.

Beware of purchasing a new home before the divorce is final. Any property purchased while still married will be considered marital property and you would have to qualify with all of the debt from the current home. This can be tricky and may ultimately land you in a trick bag. Mind your money when considering your next move.

Lisa C. Decker is an expert in divorce financial matters. As a discreet problem-solver and trusted advisor she utilizes cutting edge tools and industry insight to guide her clients during one of life’s most difficult challenges by helping them to “Divorce Your Spouse, Not Your Assets.” Visit Lisa at http://www.DivorceFinancialInsight.com for details and get her FREE Audio Series – “5 Things You Must Know BEFORE You Sign on the Dotted Line!”

Divorce – Moving, Money, And Mortgages

Divorce can be a time of tremendous turmoil and upheaval. So many questions need answers and many decisions need to be made especially when it comes time to talk about the family home. Do any of these sound familiar?

• Do we sell the house and split the equity?

• Should one of us stay and the other go?

• If I am the one to go, how do I get my fair share?

• Can I afford to keep the house?

• How do I qualify for another mortgage on only one income?

These are common issues during divorce. Knowing what to do and where to find the answers can sometimes be challenging. If possible, speak with your spouse to iron out the emotional issue of your home. Then consult with your Attorney and Certified Divorce Financial Analyst to make sure that you are getting your fair share no matter what you decide.

There can be many factors that go into the valuing of the home for tax purposes, especially if you have been married for many years and have owned other residences as tremendous tax reforms have taken place since 1997. However, the old rules apply to properties owned before then. It is imperative that you to consult with a financial advisor who is versed in these matters before you finalize your divorce because relatively minor changes in the tax laws can significantly affect the tax results on the sale of your home, sometimes creating tremendous unforeseen tax bills.

If you have children, it may be helpful emotionally if they have a familiar place to come home to during, and for some time after, the divorce is final.

In considering your decision, start by looking at the monthly costs involved and see if it makes sense financially. Remember that you will need to add the total costs of the mortgage, taxes, insurance, homeowner’s dues and maintenance when doing your calculations. Many people forget to factor in the cost of a possible new roof a couple of years down the line or other household repairs that may be needed. This can be a costly mistake in the long run.

Since the home is an emotional asset, many times one spouse will give up other – sometimes times better – assets in order to keep the home without considering the true costs associated with keeping it. Unfortunately, that can lead to foreclosure if the spouse is no longer able to afford it after the divorce.

Also consider that your household income will likely be decreasing while your overall expenses may be increasing if you are subject to a court order for support. The decision regarding the family home is wrought with many issues.

If you decide to split the equity in the home you have several choices – you can sell it and share the proceeds (after the calculations regarding commissions, sales expenses and basis are factored in); you can refinance and pay your spouse with proceeds from cashing out some of the equity in the home; or you can use other assets such as cash, investments and retirement funds to “buy them out.” This decision can be extremely complicated and should not be done without consulting with your financial professional.

Getting a new mortgage can prove challenging, especially with one income. However, if you have good credit and income it should not be a problem. Many times child support and alimony are viewed as stable income if you have been receiving it for at least three months and it is projected to continue for at least three years.

Be aware that if your name is still on a mortgage you will be held liable for it if your ex defaults, even if the divorce decree states that you are no longer responsible. Divorce courts do not have the power to wipe out your obligations to credit card or mortgage companies. Make sure that your ex-spouse makes good on any debts that still have your name attached. A better strategy is to pay off all joint debts before the divorce is finalized.

A good mortgage broker can provide information about how to contact your mortgage company and request a “Qualifying Name Delete Assumption.” This process allows the current loan to remain unchanged, but relieves the non-occupying spouse of further liability.

Beware of purchasing a new home before the divorce is final. Any property purchased while still married will be considered marital property and you would have to qualify with all of the debt from the current home. This can be tricky and may ultimately land you in a trick bag. Mind your money when considering your next move.

Lisa C. Decker is an expert in divorce financial matters. As a discreet problem-solver and trusted advisor she utilizes cutting edge tools and industry insight to guide her clients during one of life’s most difficult challenges to “Divorce Your Spouse, Not Your Assets.” Visit Lisa at www.DivorceFinancialInsight.com for details and her FREE audio series “5 Things You Must Know BEFORE You Sign on the Dotted Line.”