Adult Children of Divorce

Many people assume that, by divorcing later in life they save their children from suffering, but sadly, that is not so. Just because the children are grown does not mean that they won’t be affected when mom and dad throw in the towel.

There are many issues that make a marital breakup more financially and personally difficult when someone reaches midlife. As a person ages, life and personal finances become more complicated.  Most middle-aged couples own a house, one or two vehicles, and retirement accounts and pensions as well as a variety of debts — a mortgage, one or more car loans, various credit card bills, and maybe even student loans for their children.

Divorce over the age of 50 has its challenges that a younger couple may not encounter. A man and women married 20 to 30 or years become institutional. Family, friends, and neighbors, all know them as a couple. Becoming newly single and facing these friends as someone who is now uncoupled can be unsettling.

The newly uncouple now have to figure out how to be a single person again, no longer part of a couple. For two or three decades or more, they thought of themselves as married persons: a husband, a wife; with an intact family, now, all of that is gone. An entire identity has just vanished, and all that remains are the memories of earlier and more hopeful times.

Moreover, the former spouses have to deal with adult children, who often suffer profoundly when mom and dad part ways. Unlike young children, couples don’t concern themselves with the emotional, physical and financial toll of divorce on adult offspring.

Most adult children are shocked when they learn their parents are divorcing, even if the children knew their parents’ marriage had been headed for that way for some time. There is still a sense of loss for adult children when their parents divorce. Adult children often become cynical when their parents divorce after a long-term marriage. The adult child develops problems with trust and many become angry. They lose their faith in marriage, and in their parents.  The sense of family is now lost and the adult child finds him or herself questioning whether their entire past was a lie. When your parents use derogatory ways to describe the marriage such as I’ve wasted all these years of my life or I never should have married that man (or woman), the adult child then questions the reality of his or her life. Angry parents can thoughtlessly poison memories of better times for the adult child.

The effects on adult children of divorce are numerous including a preoccupation with declining health issues or even death. The adult child of divorce may resent his or her parents, feeling abandoned and betrayed. The effects are just as traumatic on adult children as younger children.

Divorcing seniors can reduce the impact of divorce on adult children in a number of ways.

Adult children are still children born of a marriage between the parents and may have strong feelings and emotions about the collapse of the marriage. They need to grieve because the divorce is their loss too. As with young children, the adult child should not be expected to take sides of one parent over the other.

Breaking the news of an impending divorce to children is particularly unnerving, both for parents and children. Parent should tell the children respectfully and with as much care as if the child were a minor.

Parents should also remember, the child is still their child, not a therapist or friend, someone they can (or even should) confide in. The adult child is not a confidante. When people split they need to talk. A lot. Convincing the adult child who is right or who is wrong is not up to the child to discern. It is inappropriate to put the child in the middle no matter whether the child is a minor or adult. This can become a swamp of unsought intimacy. The boundaries of appropriate conversation between parent and child collapse when parents run down one other with intimate details of a failed marriage. The lurid details of why a marriage failed are not for a child’s ears. Children are not caretakers of the parent going through divorce.

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Capital Gains in a House Sale at Divorce

In property settlements, transfers between spouses are gifts and are not taxable. However, in order to pay a settlement, sometimes couples must disturb assets in a way that creates tax consequences. For example, taxes may result when a party must withdraw funds from a pension fund.

Capital gains tax is not always an issue for most divorcing spouses. Capital gains of up to $500,000 can be sheltered from the sale of the primary residence, but the sale of other real estate may result in taxable revenue.

Other situations where taxes should be considered is when divorcing when the couple is selling an asset that is received as a result of a settlement; the marital home for example may create a capital gains liability. This is not contrary to the above statement where capital gains is not an issue for most divorcing spouses. This is when one spouse receives the marital home as part of the settlement and the home is not sold at the time of the divorce; when one of the parties take future income from the asset to be received later.

In divorce both parties should understand the basis for sheltered property, which includes the original cost, minus any improvements. Under tax laws, each spouse may exclude up to $250,000 (or $500,000 as couple) from any capital gains tax if they lived in the house for any two of the last five years.

The couple must decide how to divide the marital home, and take into consideration any capital gains tax that affects the party. In general, transfers of property between divorcing spouses are nontaxable. But there are circumstances where the capital gains tax (a tax on profits from sales of property where the gains exceed a certain amount) do apply to transfers that are made as part of a divorce.

The Basics

If the parties sell the marital home, each can exclude the first $250,000 of gain from taxable income. The capital gains exclusion applies only to the marital home if it was the primary residence that both parties for at least two of the five years before the sale of the home.

Military members can extend the five-year time frame to up to 10 years under certain circumstances.

The capital gains exclusion does not apply to a vacation home.

To figure out your taxable gain, you take the selling price of the home, minus any selling expenses, minus the amount that was originally paid for the house (or the cost to build the home). There may be some leeway for improvements to the home during the course of the marriage.

Buyouts

When one spouse is buying out the other, the sale is part of the divorce so the seller doesn’t really have to worry about any capital gains.

On the other hand, however, the buyer who stays in the house and later sells the home may only exclude the first $250,000 of gain, remember however, that you must live in the home 2 years before you sell the house or you need to meet one of the IRS exceptions to that rule.

Co-Owning the House

When both spouses continue to own the house but one of the spouses no longer lives in the home, he or she risks losing the $250,000 exclusion when the house is sold.

To avoid losing the exclusion, the spouses should make sure there is a written agreement of co-ownership. It must be made clear that the arrangement is pursuant to a divorce settlement or court order and that the agreement states both spouses remain co-owner but only one spouse lives in the home.

Capital gains can be confusing. Make sure you read and try to understand the IRS Publication 523, which may address some of the issues. If nothing else, contact a tax attorney or accountant to discuss how capital gains may affect you in your divorce.

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Staying Healthy During a Divorce

Divorcing people very often find that the death of a marriage is a heroic struggle to “stay sane, healthy and hopeful” because the marital breakup assaults the body, the mind and the soul. Few life traumas effect such profound pain and suffering as a divorce, which can be made worse by neglecting health and physical well-being.

People enduring a divorce must take care of themselves each and every day throughout the experience. They must exercise, eat well, get plenty of rest, avoid heavy drinking and sleeping aids, and resist the urge to get involved with anyone else. Staying healthy physically gives a divorcee the stamina to face the emotional side of divorce, not avoid it. Pain in any manifestation — physical, mental, or emotional– must be met head on and dealt with. And that begins with self-care.

Exercise

The first step to getting through the day is just that — exercise. In sickness and health, walking is probably one of the best forms of exercise, but any type of exercise counts — dancing, swimming, yoga.

A divorce drains physical, mental and emotion energy, so the body needs additional sleep — a good 8-10 hours per night. Deep sleep is the time the body can repair itself, and it is the best time for healthy cells to grow. Exercise will help your body rest and a good night sleep will come much easier.

Eating Well

Stress and sadness can give a diet a knock-put punch. Some people stop eating, and others cannot stop eating — with predictable results in either direction. Three square meals a day that combine protein, fat and carbohydrates help keep blood sugar stable.

Social Isolation

The health consequences of social isolation cannot be neglected. When people breakup, friends they had a couple tend to fall to the side, which isolates the divorcing partners. Family, friends, co-workers, helping professionals — people who convey a positive impact — are more important than ever.

Long-Term Effects

Poor self care — which is far more common among divorced men than married couples — can have long-term health consequences. According to Mark Hayward, a sociology professor and director of the Population Research Center at the University of Texas–Austin, the stress of divorce can accelerate the biological processes that lead to cardiovascular disease. Divorced, middle-aged women, he says, are more likely to develop heart disease than non-divorced, middle-aged married women. And a recent study by sociologists at the University of Chicago showed that divorced or widowed individuals are 20 percent more likely than married people who have chronic health conditions, such as heart disease, diabetes or cancer.

The failure of a marriage demands clear-headed decisions because a clear-headed person is far better equipped to handle conflict and unpleasant behavior.

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Bankruptcy

Spousal and Child Support & Bankruptcy

You cannot dodge paying child support or alimony by filing bankruptcy.

The Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (BAPCPA) places a claim of unpaid child support and alimony ahead any other creditors’ claims, even taxes.

Support is the first to be paid out of any bankruptcy filing. Any support arrearages survives a bankruptcy without the need for a dependent going to bankruptcy court to argue the matter. However, the person owed support, either child support or alimony must file a proof of claim with the bankruptcy court to receive payment.

BAPCPA requires that if there’s a claim for a domestic support obligation in a case, the trustee in bankruptcy, to give the claimant (who is the noncustodial parent) and her state’s Child Support Enforcement Agency written notice of the bankruptcy and any discharge given to the ex-spouse.

Under BAPCPA, the obligation to pay child support or alimony is not dischargeable. BAPCPA does not differentiate between alimony or child support and debts that are the result of property settlements. The latter used to be, in certain circumstances, a dischargeable debt; neither can be discharged under BAPCPA.

Under BAPCPA, the trustee in Chapter 7 and Chapter 13 bankruptcy cases are required to disclose certain information to a support creditor, who is usually the ex- or separated spouse, including the most recent known address of the debtor.

Filing Bankruptcy Before Divorce

Most divorce and bankruptcy lawyers suggest that struggling couples make a smooth and clean break by filing for bankruptcy before filing for divorce.

Start to finish, a divorce becomes much cleaner and easier with no debt obligations to distribute, particularly when spouses can come together and work towards a fresh start for both of them. Filing bankruptcy before divorce helps ensure that happens.

It almost always makes sense because filing bankruptcy means that all joint and individual debt is discharged in the action, so there is be no lingering joint debt that the non-filing spouse is responsible for.

Also, in the vast majority of cases, the spouses should file for bankruptcy before filing for divorce because when they file for bankruptcy jointly they pay one filing fee instead of two individual filing fees. Moreover, filing jointly means paying one attorney fee (and reaping significant savings).

The joint filing also makes for a larger household size, which works to the advantage of the filers who pass the means test and qualify for Chapter 7 Bankruptcy.

Filing Bankruptcy After (or During) Divorce

Filing for bankruptcy after or during a divorce make makes the action more difficult, particularly for the majority income earner, who may not be able to qualify for an easier Chapter 7 Bankruptcy.

Moreover, debt divided and assigned following a divorce decree is owed by one spouse to the other, and is not dischargeable in bankruptcy. Some people believe that filing bankruptcy after divorce means they can avoid support obligations. Bankruptcy provides no safe harbor from child support and alimony.

In addition, filing for bankruptcy during a divorce triggers an automatic stay and halts the action, which drags out an already painful action and makes it longer. Further, bankruptcy does not wipe the slate clean.

When Bankruptcy and Divorce Go down the Aisle

When it looks like a divorce and a bankruptcy are on the horizon, spouses would do well do review the basics of debt, divorce and bankruptcy.

Joint debt is a joint responsibility. When both spouses sign for a loan, a debt (for example, a mortgage or car loan), both may both be responsible for that debt even after the divorce. In other words, even if the court deems that one spouse is responsible for paying, the credit rating of both spouses might be affected should the loan go into default because of what is called joint and several liability.

For this reason, the spouses should memorialize an agreement about which of them is responsible for what debts. The bankruptcy lawyer who may have helped them file jointly, however, cannot help them because he or she is in conflict of interest and cannot act in a way that is detrimental to either spouse. So when parties want to legally divide payment responsibilities, they must turn to another lawyer to write the agreement.

Conflicts become particularly important during the three- to five-year repayment period of a Chapter 13 bankruptcy. In a Chapter 13 action, the parties must maintain their repayment schedule: If someone misses a payment, the bankruptcy trustee can move to dismiss the case, which removes the court’s protection and the chances of getting a bankruptcy discharge.

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Fathering After Divorce

Fathers often are the forgotten parent when it comes to divorce. A father is looked at as the parent who supports the mother, sometimes assisting her in the parenting of the child or children. Yet this implication can have a very toxic impact on the relationship of the divorced father and his child or children. Typically, mothers receive physical custody leaving fathers as the non-custodial parent and offering at best a liberal visitation schedule. This may be a long road to walk and often leaving the father / child relationship strained.

Mothers remain very involved with their child or children, performing daily activities for and with the child or children. The father on the other hand often is the person who walks into and back out of the child’s life with sporadic visits. Fathers aren’t even expected to spend as much time with their child as mothers are. Note the key term here is expected. As a whole, there is not as much expectation when it comes to a father’s role or involvement with the child.

Almost half of American marriages end in divorce. In about 90 percent of divorces, custody is awarded to mothers with fathers receiving visitation. Fathers might see their child once or twice a week; often children do not see their fathers at all. It is estimated that after 10 years after the divorce approximately two-thirds of the children won’t see their father at all. There are about 30% of children now born to unwed mothers, leaving some of the children to never really bond with their father at all.

If the father remarries, the child feels displaced which also leads to the deterioration of the father / child relationship. Biological children believe the father’s loyalty shifts to the new family. Often fathers and their relationship with their children are looked at harshly. Fathers are viewed as absent or dead-beat. However, if a mother remarries, the relationship with the child is less affected. If mothers remarry, it is usually not as quickly after the divorce as fathers remarry.

Divorced dads are categorized as follows:

The Disney Dad – this dad engages the child in recreation, not real parenting. Dads of this type rather have fun with their child, in and of itself is not an issue, it is the actual lack of parenting, lack of structure missing from the child’s life.

The Deadbeat Dad – this is the father who does not pay child support. Whether dad is unemployed or is having financial difficulties, he fails to meet the child support obligation for his child. Often Mom will mention just how much Dad owes in back child support, often alienating the child based on financial obligation alone.

The Disappearing Dad – this Dad is the one who moves away, remarries or cohabits with a person not the child’s Mom and now focuses his attention on the new home or family or relationship. Often the Disappearing Dad does so because of constant conflict between Mom and himself, or Mom continually taking Dad back to court for some reason or another. This father will become angry and not having enough time with his child, but will disappear anyway.

Maybe Dad has a legitimate reason to lessen the involvement with his child; but as far as the child is concerned, no reason is good enough. Dads will stop being involved with their child because of Mom’s anger, continued conflict between Mom and Dad over support, Dad may feel there is maternal bias in the court system; Step Dad takes over as Dad, custodial Mom remarries and moves away from Dad. Again, no matter the reason, no reason is good enough in the eyes of a child. A child wants to see his or her father, and will question his or her self-worth and even his or her ability to be loved if the child believes his or her father does not love them.

Once the child reaches adulthood, reconciliation and the relationship between Dad and child may improve. Some children blame their father for the divorce, worsening of finances for Mom and them, and are genuinely sad about not having their dad around. Abuse is a different story, often children are relieved that dad is gone, but there is still a sadness that lingers – even if the child no longer considers his or her father a part of his or her life.

Often the child who is enlisted in parental disputes will experience conflict between loyal to Mom but also loving Dad. Parents should always avoid tipping the scales in their favor when it comes to the love and loyalty of the child. The child has the right to both parents.

If infidelity on the part of the father, and this was the cause of the divorce, often the child cannot forgive their father. The child will blame the infidelity for the deterioration of the father / child relationship.

Communication is a key factor to having a good relationship with your child. Children who lived at least half time with their Dad had better relationships than children who saw their dad less than at least half time.

To have a good relationship with your child, after the divorce, become more involved in the actual parenting of your child. Take more responsibility for the child’s upbringing, make an effort to have a good relationship with your former spouse, and above all, spend quality time with your child. You do not have to be the father described above.

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Remedies When a Parent Abducts a Child

One parent abducting the child in the midst of a custody battle is not as uncommon as you would think. Parental kidnapping is illegal. As logical as it may seem for the parent to just run away with the child or children, this act puts the child, and ultimately the parent, in danger. A custody dispute, no matter the turn out only harms the child, in every way. For a parent to turn to illegal means to keep the child away from the other parent teaches the child fear, fear of the other parent, fear of the judicial system – fear of the world around them.

There are remedies for the return of the child. The criminal justice system will become involved and a different custody routine will be put in place to hopefully prevent future incidences of parental kidnapping.

Law enforcement does not like intervening when it comes to family disputes, whether it is custody or domestic violence; however, in these instances it is always best to contact the police immediately. When it comes to parental abduction, federal and state laws must become involved to help safely return the child. The FBI often will become involved as sometimes the abduction involves international travel. Hiring a private investigator after you have contacted law enforcement may be a good idea as the private investigator will be able to devote his or her time solely to your case. Law enforcement unfortunately can be limited in manpower.

A parent kidnapping their child is not about having the child; it is about hurting the other parent. The child is then turned against the parent (who does not have possession) by the kidnapper parent (parental alienation). Less than 1% of 200,000 to 300,000 cases of parental abduction come with credible or even provable evidence that the child was ever in real harm or danger in the custody of the parent. Nevertheless, parents do not have the right to remove the child from the custody of the other parent.

It is important to understand, parental kidnapping only occurs when there is a current court order signed by a judge setting out who has custody, who has visitation; otherwise, one parent taking the child is not kidnapping. Parents have equal rights to the child; either parent can go wherever he or she wants, vacation, visiting relatives. If the parent removes the child from the state, won’t tell the other parent where the child is located, or denies access to the child or denies visitation to the parent, this act then becomes kidnapping, despite not having a custody order. In this situation, the parent who is denied access to the child should petition the court for an emergency custody order and a warrant for the arrest of the parent who removed the child will be issued.

Going through the proper channels to relocate, petitioning the court, notifying the other parent, a parent is not abducting his or her child. It is in the keeping of a secret, not allowing the other parent access, failing to notify the court (and parent) of the move that will bring kidnapping charges. A parent may need to move for monetary reasons, a new job, moving close to family. A judge even if the parent does move without going through a court order, may require the departing parent to produce the child but often if the move is beneficial for the child, a judge will allow it. If the move is arbitrary, is not beneficial to the child in some way, often the other parent will receive sole custody, physical and legal, and the parent who moved with the child may only receive visitation.

Custody schedules are set up by the parents and memorialized in a custody order. Failing to return the child after a scheduled visit or even failing to produce the child for a scheduled visitation with the other parent may not be considered parental kidnapping. Only when the parent interferes with the court order and would be in contempt of that order would the court step in by issuing an emergency order. Before the police will become involved in any custody dispute, the custodial parent would need to produce the custody order, duly signed by the judge.

The court, being neutral, only wants what is best for the child; that being both parents involved with the child. The court is charged with maintaining the best interest of the child and if the parents are unable to come to terms with this, a judge will likely issue a bench warrant and press for charges of kidnapping against the kidnapping parent. A child has a right to access to both parents.

Naturally, once the child is returned to the lawful custodial parent, he or she wants to prevent any further instances of kidnapping. Kidnapping the child will damage any credibility the abducting parent had with the court and the abducting parent could have his or her parental rights terminated. Any interference of parental rights, the custodial (or non-custodial) parent can seek a custody modification.

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Do Affairs Always End in Divorce?

There are many reasons having an affair will lead to a divorce; there are just as many reasons divorce will not happen just because of the affair.

Of course, if the affair continues after the affair is exposed, divorce is surely inevitable. However, whether or not the spouses reconcile or divorce may fall on the commitment to the marriage by the spouse who started the affair and the identity of the lover. The length of the marriage and age of the spouses also are instrumental whether or not it is beneficial to divorce or try to reconcile the marriage. Also, if there are children of the marriage, the spouse may want to try and make the marriage work for the sake of the children.

Once the affair is exposed, if the spouse who started the affair continues with the affair, he or she is forcing the issue of divorce. They may say the do not want the divorce but it is in their actions that is telling. Tell your husband or wife that the affair is over, but yet you continue the affair, working on your marriage seems pointless and divorce would be the next step.

You may be asking, what does the identity of the lover have to do with divorce. But ask yourself, if your husband slept with your sister, or best friend, would that make a difference than if the person were someone you didn’t know? The identity is often a crucial factor in whether or not divorce is imminent and whether it will be a bitter and costly divorce. If the person the spouse is having an affair with is a person of importance, trust is broken and humiliation ensues. Humiliation is a sure fire way to get someone angry.

So now the affair is exposed, if both parties are committed to the marriage, divorce is not inevitable. Admitting to the affair, working on the marriage, trust can be rebuilt and does no have to lead to a divorce.

The longer the marriage, the harder it is to make the decision to divorce. The divorce rate is considerably higher for short-term marriages.

The length of the affair is not the determinate factor, but generally provides an indication to the degree of anger and hurt the non-straying spouse may experience. A two-month affair may be less upsetting than a twelve-year affair.  A one-night stand, while upsetting, while still a betrayal, may be able to be worked out fairly quickly and the hurt may subside quicker for the spouse. A short-term affair, maybe less than say 3-months, still may not end the marriage. The medium-term affair that lasts longer than 3 months to sometime past a year is far more damaging to the relationship and trust issue. A long-term affair, lasting more than a year is the most damaging and the marriage is likely not to survive, at least not for long. Trust is broken, not just bent.

Divorce after an affair is more common in a younger couple than an older couple. But this is not always the case. Couples in their 50s or 60s are divorcing just as much as the younger crowd.

Often parents will try to make the marriage work for the sake of the children. However, even when the children are grown and out of the house, if the parents divorce due to the affair, the child feels lied to by the parents. Parents may believe it is in the best interest to stay together, however, in the case of an affair, if trust and respect have are not in the marriage, it would be much harder on the children for the parents to stay together.

If the straying spouse cannot break all ties with the lover, even an emotional attachment, divorce is probably in the cards. Maybe not right away, but the straying spouse will eventually go back to the lover, even just to talk. This emotional attachment is detrimental to spouses trying to work on the marriage. An affair is not always of a sexual nature; emotional affairs are just as damaging. This emotional bond between the spouse and the lover provides insight to a larger issue in the marital relationship. The straying spouse should not be getting his or her emotional needs met by someone outside the marriage.

To ensure the marriage and deter a divorce, the non-straying spouse must be able to forgive the straying spouse. Blame has no place with a couple trying to make their marriage work. The feelings of betrayal must be dealt with and subside for the marriage to survive.

The emotional bond within a marital relationship can range from two people who simply co-exist to two people who have an extremely close bond. The bond between husband and wife clearly indicates whether the marriage can survive an affair. Couples that are best friends may not be able to survive an affair, while the roommates might be able to continue to co-exist in a marital relationship. It comes down to trust, if a spouse feels betrayed, he or she may seek a divorce.

There is no doubt the marital relationship takes a hit when a spouse has an affair. How much of a hit, well that depends on whether or not the spouse can work on the issues that lead to the affair in the first place, move past the betrayal, and into a place of healing.

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Allegations of Criminality in Divorce Cases

Pleading the 5th Amendment does not always benefit when trying to defend a client and also represent the client who is going through a divorce. Sometimes, remaining silent can have a very negative effect in a divorce action and the court may take your silences as an admission.

Child custody, often agreed to between the parties takes a different path when criminal charges are pending or convictions are of record. The court will consider the likelihood of a parent who may be sent to prison when determining custody.

A parent who will likely be sent to prison will not have as strong a bond, he, or she, will be away from the child for an extended period of time. Also the parent in jail will have a harder time providing for the child, both monetarily and in terms of providing a stable home environment. Often employers or even landlords inquire about prior convictions. Even after coming out of prison, a parent may find judgments high and the court considers the parent’s moral character when deciding custody. A serious or recent conviction will likely be difficult for the parent to overcome in a custody action.

Among the biggest impact a criminal case may have on a domestic matter is that the divorce action will continue.

In a contested divorce action where there is a custody dispute, one side or the other raises allegations of child abuse. Child abuse is a criminal matter. In this instance, the party alleging child abuse must be careful. Making a false allegation, also a criminal act, of any kind, will come back to the parent making the allegation.

For example, when making a criminal accusation against an estranged spouse in a family law case, often the accuser forgets or underestimates his or her own role in the alleged crimes. Accusing one parent of selling illegal drugs exposes the parent making the allegation. How does the parent know the other parent sold illegal drugs, was that parent involved as well? The parent who makes the allegation may be charged with accessory to the crime.

If a parent suspects or has knowledge of abuse against a child, physical or sexual, the law requires an adult with this knowledge to report it to law enforcement or child protective services. Failing to report suspected child abuse is a crime and there is no exception under spousal privilege. The parent who reports criminal behavior to authorities may also be exposed to criminal prosecution for a number of issues (1) child endangerment; (2) reckless endangerment; (3) or even failure to protect the child.

Unnecessary criminal charges filed in a divorce can cost both parties. When allegations of criminal wrongdoing arise in a divorce action, early action may save time, expense, embarrassment, and possibly even a serious and life-changing criminal conviction and a negative outcome in the custody case.

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Divorce By Publication

Sometimes a spouse disappears out of carelessness, and sometimes out of spite. A spouse leaves town or state without leaving a forwarding address. In some cases, the couple lives apart for a long time without divorcing, so they drift apart. Sometimes disappearing spouses believe they can hold up an action if they cannot be personally served. But it is not so. When all else fails, a petitioner may legally notify a respondent of a divorce in a newspaper advertisement.

Divorce by publication joins the spirit and the letter of the law in a procedure that has ended the marriages of thousands of people who cannot find and serve personally a missing spouse. Service by publication insures that a party is aware of litigation pending against him or her.

Divorce by publication frees spouses who would otherwise be chained to marriages that exist in name only.

Each divorce starts when a plaintiff (or petitioner) spouse files a petition (or complaint) for divorce against a defendant (or respondent) spouse. The plaintiff spouse files in the court clerk’s office. The clerk’s office normally gives the plaintiff a summons, a legal document that puts the defendant on notice of the case. The summons requires that spouse make an appearance in the case. Courts require plaintiffs to serve the summons to ensure they have the opportunity to defend themselves. This notice is called “service of process.” It insures that no one is blindsided by litigation and a defendant has adequate time to prepare for action.

Normally the plaintiff’s attorney or a neutral third party delivers the petition and summons (“the divorce papers”) directly to the defendant by hand or mail. In all jurisdictions, the most common type of service is “personal service,” where the divorce papers go directly to the defendant. In many jurisdictions, the sheriff or constable serves the summons. Sometimes, a plaintiff spouse can deliver the divorce paperwork directly to the defendant spouse. In other cases, a plaintiff spouse or the plaintiff’s attorney hires a professional process server to deliver the paperwork to the defendant spouse.

The person who delivers the divorce papers completes an affidavit verifying that service has happened. In many cases, the defendant spouse acknowledges receipt of the summons. For the plaintiff, this eliminates the cost of a process server; for the defendant, it eliminates being served at work or in another public place. The defendant completes an acknowledgement of service form that goes back to the clerk. In addition to personal service, most jurisdictions also allow substitute service, where the defendant receives the summons at home, a place of business, or by certified mail.

When a plaintiff cannot locate a defendant, the court may allow service by publication. In this regime, the plaintiff notifies a defendant of a lawsuit by publishing a notice in a court-approved newspaper or other publication. This type of notice is called “a constructive notice.” While the defendant may not have actually received notice, (or even see it or read it) publishing information about the lawsuit publicly fulfills the notice requirement, so the lawsuit may begin. Normally service by publication results in a default judgment for the plaintiff since the defendant fails to answer the summons.

Service by publication is a last resort; courts require a plaintiff to make “a diligent effort” and exhaust all other options of service before permitting it. The plaintiff or his or her attorney submits an affidavit stating the efforts taken to locate the defendant and requesting permission for service by publication. When the court grants the request, the plaintiff submits a notice to the court-approved publication. The plaintiff pays a small fee to the publication for publishing the notice. In most states, the notice must appear a certain number of times or for a certain time period.

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Who Needs a Prenuptial Agreement?

Very often couples planning marriage face a moment when one asks the other, “Will you sign a prenuptial agreement?”

The decision to ask for a prenuptial agreement is based on the very real possibility that the marriage may flounder. In a way, a prenup, as it is called, is often referred to as a  prearranged divorce. Some people might think of it as parachute that you hope they never use. A prenuptial agreement, according to Black’s Law Dictionary, is one “entered into by the prospective spouses prior to marriage by in consideration thereof, by it, the property and other financial rights of one or both …predetermined or secured to one or both of them or their children.”

A prenuptial agreement can be very important when a couple spins that roulette wheel of romance a second and/or a third time, when both the husband to be and the wife to be each have accumulated assets they wish to convey to adult children.

A prenup is a contract between two people — a husband and wife – by which, with reasonable limitations, they establish in advance the terms and conditions of their divorce. Without a prenup, the court divides contested property by the laws of the jurisdiction. With a prenup, the couple can in advance decide who gets what.

The prenup documents each partner’s separate property and protects it as such. Prenups are used in support of estate plans. They distinguish between marital and separate property, and document any special arrangements between the partners.

However, the prenuptial agreement must deal with financial affairs, not “personal preferences,” such as chores or schools that the children attend.

Of course, some people balk at the thought of a prenup, after all, does not love last forever even when 60 percent of second marriages capsize?

Obvious it does not.

Many family law lawyers recommend a prenuptial agreement if a party owns real estate or any part of a business, has $50,000 in assets, earns more than $100,000 a year, has more than one year’s worth of retirement benefits. A prenup should also be considered if one party plans to go on for an advanced degree.

 

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