Alabama Family Law Blog

World of Warcraft is a best-selling online role-playing game.  It boasts over ten million subscribers; however it has apparently also left an increasing number of real life casualties in its wake, including a woman named Jocelyn.

Though she is not a player, the 28-year-old California native has divorced her husband of six years due to his development of what she describes as a "crippling addiction" to the game.

She claimed that shortly after he would come home from work at 6:00 p.m., he would begin playing until 3:00 a.m. She said that he was even worse on the weekends, when he would play from the morning until the middle of the night.

“I ceased to exist in his life,” she said.

Jocelyn and her ex-husband Peter had been friends since age 13. However, nine months was all it took for the marriage to fall apart.

She said she purchased the game as a Christmas present for him in 2004, when it first came out. They had their first serious discussion about the direction of the marriage in May of 2005. She moved out of the house by September 2005.

She also said her ex-husband failed to perform his domestic duties as well. She says that he was no longer paying his bills, nor doing his part of the housework.

She doesn’t hesitate to say that the game was the main reason the divorce took place and is still emotional about the impact it had on the marriage. She was upset that her husband would ruin his life and his marriage for “a fantasy land.”

This story was originally told at Yahoo Games and can be found at this link.  Though it only includes one side of the story, if true, it is sad that a video game could cause the break up of a marriage.  It reminds me of the title of a good book, Amusing Ourselves to Death.  Or, in this case Amusing Ourselves to Divorce.

In your divorce case, you may hear your lawyer talk about the "discovery process."  Discovery is essentially the legal process by which lawyers can obtain information necessary for your case (such as assets, debts, income, and other factual information).  This often will involve written requests to your spouse to produce certain documents, a request for them to file written answers to the lawyer's written questions (called interrogatories), subpoenas for documents from banks, credit card companies, etc.

Often lawyers will use multiple methods of discovery in an effort to obtain complete information.  I have had clients ask me not to pursue discovery for fear of the costs that would be incurred.  This is often short sighted.  An example from a recent case I had is instructive.

I was representing a wife in a divorce case.  The husband had complete control of all of the finances and the wife was not even aware of all of the assets.  Through the discovery we sent to the husband he produced a spreadsheet that he claimed were the assets.  The wife was surprised at the amount of assets that were disclosed.  They were much more than she thought they had.  But, the husband showed what he claimed to be the fair market value and the loans owed on them.  In all, he showed a net equity of less than $500,000.  It was more than the wife suspected, but something told me it was less than it should be.  So, we subpoenaed his bank records. 

The bank produced documents to us that included the husband's loan application and the net worth statement that he provided to the bank.  And, you've probably guessed the punch line - the net worth statement he provided to the bank included assets that he had not disclosed on the financial statement he provided to us, and the values were higher.  In all, the difference was that he showed a net worth on the financial statement provided to the bank that was nearly $2.5 million dollars - increasing the marital estate for the divorce judge to divide by about $2 million!

My client now understands it was to her benefit to make sure we did a thorough job of discovery.  Obviously this example (though completely true) is not what usually happens - at least not to this degree.  But, the lesson is a good one - make sure that your lawyer does a thorough job of discovery.  And, make sure that you let him.

I recently came across this article from the USA Today which set out Five Common Financial Mistakes Made in Divorce.

Here is a summary of their points:

1. Trying to keep the house no matter the costs.  Many couples scrambling to obtain a divorce settlement wish to keep the house at any cost. However, financial experts say that more attention should be given to who can afford to maintain the property, pay the mortgage, and manage the taxes. While it is possible to ask for spousal support to help make the mortgage payments, unexpected maintenance costs may pop up, and make home ownership more of a liability than a luxury.

2. Failing to get a clean financial break from your former spouse.  Clean separation of assets and debts is another difficult task, but one that Howard Dvorkin, the founder of Consolidated Credit Counseling Services says is absolutely necessary, or the consequences can be devastating. Although the task may seem insurmountable, “the alternative is much worse,” says Dvorkin. “Having a spouse drive up your debt when you’re not married anymore” can seriously affect one’s credit score.

3. Depending on your former spouse to comply with financial arrangements. This is also a huge mistake, according to the USA Today article. Although both parties in a divorce are beholden to a court-ordered divorce agreement, creditors do not fall under that arrangement. If your ex spouse is supposed to pay the mortgage, but doesn’t, “the lender is going to sue both of you,” remarks Melissa Avery, an Indianapolis family law attorney. This holds true in Alabama divorces as well; if your ex fails to pay the mortgage, you may be hurt when applying for future loans.

4. Not reviewing your estate plan after a divorce. Wills and trusts can also be seriously impacted by divorce proceedings. If divorced spouses wait unnecessarily long to change a beneficiary on a will, for example, the money may go to the wrong person—your new spouse may get nothing, while your ex spouse inherits the amount provided for in your will.

5. Not understanding the different tax treatment of alimony vs. child support.  Finally, never forget which amount of money in your divorce settlement is alimony, and which amount is child support. Whereas child support payments are not taxable to the recipient, alimony payments are. Furthermore, there are limits to how long a person can receive such payments—child support payments can no longer be received once the child turns 18 or is done with college, while spousal support generally ends once the recipient remarries.

Credit goes to the California Family Law Blog for first posting about this article.

Whenever you are going through divorce, it is important to maintain secure lines of communication with your lawyer.  This is especially important in the early stages of representation, when you may not want to tip your hand to your spouse that the divorce is imminent.

Houston divorce lawyer, Shannon Cavers, recently posted an informative article on this subject here.  Like Shannon, at the initial consultation we ask our clients for a spouse safe e-mail and mailing address.  It is so simple to open a yahoo or hotmail e-mail account for free, that you should consider opening one for this purpose.  In doing so, make sure that you use a password that they will not guess and that is unique to this account.

I recently found this article at the Georgia Family Law Blog.  Its an insightful look at divorce from the perspective of a seasoned divorce lawyer.  Here it is in its entirety:

1. What behavior of clients still surprises you?
That couples who did not get along during their marriage expect a divorce judge to suddenly make them cooperate with each other.

2. What determines how fast a divorce can be obtained?
The psychological point the parties are at. Some are ready to end it, get on with their life. Others use the process as a catharsis to re-live their entire marriage, vent their frustration and assert blame.

3. What is the best advice to give to a non-custodial parent?
Be polite and kind to the custodial parent. They control access to your children. Regardless of your visitation, the custodial parent has tremendous control. You may be rude behind their back but never to their face. It's a game you need to learn to play well or you could lose something greater than your pride.

4. What is the best advice to give a custodial parent?
Let your ex have the children as much as they will take them. You need a break. They are the perfect babysitter. You know they will take care of them and if they are around the children alot, they will be more sensitive to their needs.

5. Does joint custody work?
It can. Some people are naturals at it; others need a little help. A child psychologist can help those who don't realize they have damaging behavior. Putting the child in the middle and parental alienation are classic problems in joint custody.

6. What is the worst fear of most women?
That their spouse will fight them for custody.

7. Do most men fight for custody?
There are two categories of those who do: Men who honestly want custody. Men who want to scare their wives into accepting less child support provided they later relinquish the fight.

8. How can you tell the difference?
From the obvious. Those who never spend any time with their children prior to the divorce being filed; those who travel and are never home; those who have girlfriends. These guys don't want custody.

9. Any way to control those who are insincere?
For the ones who are just using custody as a fear factor, you should call their bluff. Offer them custody and watch them run.

10. Does guilt play a part in the outcome of a divorce?
Yes. Usually the party that seeks the divorce is willing to take less. Men who want the divorce and have children are willing to pay more support and often give up the house to the wife and children.

11. Does mediation work?
If you have an experienced mediator, you can usually resolve some of the issues. The mediator's experience should match the sophistication of the parties.

12. As an attorney, what do you learn from the mediation even if the divorce doesn't settle?
It's a great way to evaluate opposing counsel and their client. Most clients and attorneys reveal the strength of their case at mediation because they are trying to influence the mediator. It's a great way to find out everything that is going to be presented against you at trial. It is also a good way to find out what the opposing counsel knows about your client.

13. As an attorney, can you influence a mediator?
Usually, but you should do this when you are alone with your client and the mediator. You can ask the mediator to present issues a certain way. They will hold any information confidential that you ask them to. You can explore all types of settlement offers to find the give and take.

14. Is it advisable for the attorney to be aggressive at mediation?
I think you should save your best arguments and evidence for the Judge. Their opinions are the only ones that matter. If the opposing side hears damaging evidence prior to the trial, you can bet they will have a good prepared response when they hear it at trial.

15. Does the personality of the parties influence the Judge?
Yes. I like to find out what question I need to ask to make their spouse mad and that is the first one I ask.

16. How do you prepare your client for trial?
I prepare and go over their questions and answers in advance. That way they know at least 50% of what is going to happen.

17. What is the best advice you can give your client in the courtroom?
The judge determines everything. Although the judge doesn't ask the questions, you should look at the judge when you answer. It is his courtroom. Get him involved. Read the situation. If he looks bored or disinterested, make your answers short. Be respectful. Don't argue with the opposing attorney and never, never argue with the judge.

18. What practical considerations should a party consider when testifying?
The judge makes a decision based on a very limited view of the situation. In doing so, perception becomes reality. If one witness is better organized, more articulate, the judge can understand their testimony. For someone to make a decision, they have to be able to understand the facts. Unorganized testimony is difficult to follow. Also. perception gives credibility. Witnesses who are neat and clean and speak in an even tone without anger or bitterness are received as more truthful. Arrogance is a certain loser. Create advantages. If no one believes you, your evidence and testimony loses its importance.

19. Can you tell us if there are any tactics opposing counsel use that in your opinion have been unnecessary?
When they refuse to concede they are wrong and force the issue before the judge. These include filing a petition in the wrong county; asking for the non-custodial parent to pay for college when the law does not provide that they have to; denying their client had an affair when the client has had a child with their girlfriend/boyfriend; asking for support which exceeds the non-custodial parent's income; demanding personal property for their client which was the pre-marital property of the opposing party; asking for half of spouse's retirement when 75% was accumulated prior to the marriage; demanding visitation with their spouse's children by a prior relationship. The list can be endless.

CLOSING THOUGHTS: I am assisting people at a very difficult time in their life when they are called upon to make major decisions when they are not emotionally prepared to make them. I try to give them a sense of control over a situation that appears out of control. I try and give them feedback on how their behavior will be perceived to the Court and suggest directions which reflects more favorably on them. I strive to narrow the issues to the best settlement possible so they can determine if it's a settlement they can live with or whether they would rather take their chances with the decision of the Judge. Often times, a Judge will be more fair than the person you have been married to.

ORIGINAL SOURCE: DivorceNet

The Oklahoma Family Law Blog recently wrote an article in honor of father's day that contained some Must Read Books for Divorced Dads.  With a tip of the hat to Dan Nunley, the author of the article, here they are:

I've just discovered Stephen Worrall's Georgia Family Law Blog.  Its a very good blog with a lot of great content, and its not all specific to the state of Georgia, so check it out.

Here is a post he recently made where he found a nice Divorce Checklist which contains a  general list of issues that should be considered in resolving a divorce.  The list includes:

1. Custodial arrangements for the children
2. Visitation/parenting time
3. Child support
4. Medical, dental, hospital, pharmaceutical, and psychological expenses for the children
5. COBRA or medical insurance for a former spouse for up to 3 years from the entry of the divorce judgement where applicable
6. Income tax exemptions regarding the children -- who will claim them
7. Alimony/spousal support
8. Property division
9. Division of real estate, transfers, and deeds
10. Making sure that all investments are covered including limited partnerships, stocks, bonds, and savings
11. The handling of debts
12. Pensions, IRA accounts, 401K transfers, Qualified Domestic Relations Orders
13. Personal property including furniture, furnishings, art, and collectibles
14. Motor vehicles, including trailers and boats
15. Income taxes whether there can be joint filings and liabilities for payment of taxes
16. Bankruptcy issues, protection in case one spouse does go bankrupt
17. Proper security and protection regarding property division
18. Clauses to hold the other spouse harmless and indemnification in case someone fails to live up to his or her obligations
19. How to handle the discovery of hidden assets
20. Spouse abuse and restraining orders
21. Restoration of a prior maiden name
22. Life insurance policies as protection for child support payments, alimony/spousal support payments, and/or property payments in the event of death
23. Attorney fees and/or mediator, accountant, and other expert fees and payment of same
24. College education for children and/or spouse
25. Provisions for review in certain circumstances such as with regard to child support and/or spousal support.
26. Clauses such as payment for summer camps and/or religious training and/or upbringing or other special situations involving children

My colleagues at Fox Rothschild recently posted an interesting article to their Pennsylvania Family Law Blog which takes an interesting look at the reports that the divorce rate is falling. 

Of particular interest to Alabama families is the speculation that one of the primary reasons the divorce rate is declining is that many more people are choosing to live together without getting married.  I have noticed that trend in my practice. 

However, the scary thing about that trend in Alabama, is that we are among the few states who still recognize common law marriage.  That means that couples may be intending to cohabitate without marriage, but if they meet the (sometimes nebulous) tests for a common law marriage then those couples will still need to go through the divorce process to legally conclude their relationship.

Here is the Fox Rothschild post:

Divorce rates hit an all time high in 1981.  According to a recent article on the CNN website, rates are continuing to drop.  But there are differences in opinion as to what really is going on in American families.

Several theories exist:

* Divorce rates are down because less people get married. Rather, they live together. In fact, the number of couples living together has increased by a factor of 10 since 1960.
* Divorce rates are falling in couples who are college educated. The rationale being that in such families both parties may work, reducing financial stress, and allowing the couples to remain married.
* In some areas, the stigma of being divorced has increased. Couples in these areas may be working harder to stay married.

One thing to think about is that it doesn't matter to the children whether their parents are married or just live together when they split.  Either way, the children suffer the loss of their family.

Today we will deviate from our normal protocol of posting practical divorce and family law information and instead report on a news story related to a recent divorce in Chicago.

The rather crass title of this post is the actual bumper sticker of a local divorce lawyer.  But, in this story, the husband's divorce wasn't twenty grand - it was $184 million!  It is reportedly the highest divorce award in history.

It reminds me of a New Yorker cartoon I once saw.  In it a lawyer sits across from his female divorce client and tells her, "Some people say you can't put a price on a wife's 27 years of loyalty and devotion.  They are wrong."  In this case, it was a high price indeed.

As mentioned in the most recent post, we have reached the end of the series on steps to take when you are facing a divorce.  Although there are other things to say on the subject, if you consider these steps and discuss them with your lawyer, it should ease the difficulty of the process.

I set out here the list of steps to consider in its entirety for easy reference:

1.  Find a wise guide

2A. Determine what your own
2B. Determine what you owe
2C. Determine income (yours and your spouses')

3.  Make photocopies of the financial records

4.  Prepare a budget

5.  Document and safeguard personal property

6.  Establish your own credit

7.  Assess the financial accounts

8.  Address the credit accounts

9.  Avoid additional debt or major purchases

10.  Stay put

11.  Keep a diary

12.  Consider a private investigator

13.  Be good

Well, we have finally reached the last step in this series of posts on practical steps to consider when you may be facing divorce.  I will wrap up the series with two more posts to conclude and summarize the series.  But, first, the final step which may seem a bit silly. 

It is simply this: Be Good.

Here is the principle: you are about to be under a microscope.  You are reading this blog, so I assume that you may be facing a divorce and you'd like to that unpleasant process to be as amicable as possible.  Unfortunately, that is not always possible.  Your spouse may not share that objective for some reason.  They may be influenced by others (lawyers, friends, etc.) that convince them that what you are offering is not fair.

So, there is a chance that your case will end up going to trial no matter how diligent you and your lawyer are about trying to work the case out fairly and quickly.  That being said, you should not put ammunition in the gun for your spouse to use against you.

That means no dating, no carousing, and no partying. If custody may be an issue it means making the children your number one priority (they should be that anyway, right?).  Even things that are perfectly legal and harmless any other time can be twisted to look suspicious or worse in the hands of your spouse’s lawyer. 

Suppose for example that you go out for dinner and drinks with members of the office to celebrate a fellow employee’s birthday.  This sounds harmless enough.  But, in a custody case these questions may be asked: While you chose to go out drinking with your friends, your spouse was at home taking care of the children, correct?  Are you having a romantic relationship with Joe/Jane who was also at the party?  How many drinks did you have that night?  This is something you routinely did during the marriage, isn’t it (i.e. choosing social events over your family)? You drove home that night under the influence of alcohol didn’t you? Etc.

You get the point.  This is a silly example, but why even open yourself up to this line of questioning.  Don’t put the judge in the position having to decide whether you are telling the truth that this was a harmless and isolated event.

We continue our series on practical steps to consider when you are facing an imminent divorce.  We are now on to Step 12 - Consider hiring a private investigator.

Alabama law does consider “fault” when deciding how to divide property in a divorce.  Additionally, depending on the facts, adultery can affect custody determinations.

If your spouse is committing adultery, then you are better off having proof of it then not.  This is the case even where you fully intend to settle your case.  In fact, often having proof of an affair is what gets the case settled at terms that are fair to you.

This post continues are series on practical steps to take when a divorce is imminent.  We are now on Step 11: Keep a diary/calendar

It is important to documents all of the major events that occur until the divorce is final.  Your lawyer will likely want your help in reconstructing a chronology (a list in order by date) of the major events that led to the filing of the divorce.  Additionally, you should begin keeping careful records of new events and incidents as they occur.  Simply note the date, what happened and any witnesses that may have observed it.  In the unfortunate event that your case drags on, events will begin running together and your memory may fail you.  Don't rely on it. 

Instead, keep an ongoing diary.  Then provide this to your lawyer periodically so he is aware of any significant facts in your case. 

I should note that you really should discuss this recommendation with your lawyer before implementing it.  Some lawyers may not want you to have an ongoing record like this because it could be obtained by the other lawyer during the discovery phase of the trial (something that could have a negative effect on your case).  Or, they may want you to take certain steps to attempt to protect it from begin discoverable by the opposing lawyer.  These are technical legal issues beyond the scope of this blog.  Suffice it to say that you need to talk this over with your lawyer first.

We are nearing the end of our series on practical steps to take when you are facing an imminent divorce.  We have reached Step 10 - Stay Put (until further notice).

One of the most common questions I am asked by my clients is whether they can move out of the house.  In most cases my answer to them is to stay put.  It is not the answer most of my clients want.

I know that things are stressful.  I know that they will likely get worse before they get better. Unfortunately, there are several reasons to avoid leaving. The most important ones are the following:

1.       It could jeopardize your custody claim.  If you end up in a custody dispute, then if you leave the house and the children remain there with your spouse you will almost guarantee that you will not receive primary custody.  If the case becomes contested, it could drag out for many months (even a year or two).   If your spouse has had primary physical custody that entire time and you’ve had alternate weekend visitation, then unless your spouse has made major mistakes in the interim, they will likely maintain primary custody.

2.       It could affect your property interests.  You’ve moved out.  Your spouse pays the mortgage the entire time the case is pending.  Some judges may factor that in when making the property division.

3.       You will lose leverage in the negotiations. This is big.  You want the divorce.  Your spouse doesn’t.  You decide you have to get out of the house.  You move to an apartment and are paying your rent and the home mortgage.  Now under the Pre-trial Status Quo Order you may be required to keep paying it as long as the case is pending.  You have just given your spouse a major incentive to drag out the litigation.  I see it happen all the time.  Eventually you decide to settle for much worse terms because you can’t keep paying for two households.  Do not make this mistake.

Moving out of the house can have dramatic effects on the case.  Do not do it without discussing it with your lawyer and giving it a great deal of thought.  You should know, also, that some judges will consider a motion for temporary possession of the residence pending the trial.  This varies dramatically from county to county (and sometimes even from judge to judge) so you will want to discuss it with your lawyer.

It goes without saying that if domestic violence is an issue, then all of this is moot.  You will need to take whatever steps you must to protect yourself.  Just make sure you let your lawyer know what is going on.  In the case of domestic violence, your lawyer may actually be able to have your spouse removed from the house.

We continue our series on practical steps to take when you are about to face divorce.  We are now to step 9 which is simple, but important:

Avoid additional debt or major purchases

This suggestion goes hand in hand with assessing how to handle the credit accounts, but deserves its own separate mention.  If a divorce is going to happen, you want to be conservative with the finances.  It is not time to be putting in a pool, buying a new car, or buying new furniture on credit.  You want to simplify the financial situation not make it more complex. 

When the divorce occurs, one of the primary things that has to happen is for the divorce court to allocate who will be responsible for what debts.  Generally speaking, the less complex the debt situation, the easier task that will be.

I should note again, all of this is general information.  Your own specific situation may cause you to need to vary from it.  For example, there are times when you may have to get an automobile and it would be better to do it before the divorce because you won't have sufficient credit on your own after the divorce.  So, obviously you will want to get specific advice from your own lawyer - which is why Step 1 was find a wise guide (an experienced, competent divorce law specialist)!

We pick up with Step 8 in our series on practical steps to take when a divorce is imminent.  Step 8 is Assess how to handle the credit accounts.

If a divorce is imminent you do not want to be liable on any accounts on which your spouse has charging privileges.  It is not unheard of for an angry spouse, upon learning of a divorce, to go on a shopping spree.  Likewise, some lawyers may advise their clients to take out cash advances on joint cards to provide a cushion while the divorce is pending or to charge a large amount in lawyer’s fees on to joint cards.

You will want to consider canceling such joint accounts or at least reducing the spending limits.  If they are an authorized user on charge cards in your name, see what steps the credit card companies require to remove them as an authorized user. 

Also consider home equity lines of credit. You may need to consider whether you should close it or restrict access pending the resolution of the divorce. 

Whatever you do, do not neglect thinking seriously about how to handle this issue, and discuss it with your lawyer before making a final decision.

We continue with our series on steps to take when divorce is imminent.  We are on to Step 7 which is Assess the Financial Accounts.

If you’ve completed the prior steps in this series, then you already know what accounts exist and what the balances are. You need to make a decision about what to do with them. 

It is an unfortunate reality that one of the first things that some spouses do when they learn/decide a divorce is imminent is to raid the accounts. This is typically done after receiving particularly bad advice from an adversarial lawyer or a well meaning, but poorly informed friend.

In a perfect world neither party would touch the financial accounts except to pay normal household bills until after the divorce is over. However, if this was a perfect world, you would not be reading this blog, and I would be in another line of work because divorce lawyers would be unnecessary.

That being said I do not recommend that you clean out the accounts. Doing so immediately escalates the conflict and stress of divorce.   It also will not be well received by the divorce judge. 

So, you don’t want to clean out the accounts, but you want to be protected from your spouse cleaning them out.  If you have a reasonable fear that your spouse will raid the accounts, the only reasonable solution that I know is to remove one half of the funds from the accounts and put them in a new account in your own name.  Do not hide, dispose, or waste the money.  Document carefully where every penny is spent because you will likely need to make an accounting of it later in negotiations or at trial.  Additionally, you should not do this for the regular checking account out of which the household expenses are paid unless there is a substantial balance in the account over and above the amount needed for paying the current month’s bills.  You do not want to take action that would cause checks to bounce.

I don’t make this as a blanket suggestion.  If the money can be kept there and neither party remove it, that is preferred.  Another option for certain types of accounts is to put a freeze on the account.  Obviously that is only practical for accounts that are not regularly needed to pay bills and regular expenses.

Before you decide how to handle your financial accounts, consult with your lawyer.  If they are suggesting you go take all of the money out without a good reason, I would seriously reevaluate the whether that lawyer shares your desire for a civilized divorce.

We are now on to the sixth step in our series on preparing for divorce.  The sixth step is: Make sure you have your own credit established.

If you do not have your own credit history, you should begin the process of establishing it now.  Obtain a gas card and a credit card.  You will need to have your own credit established after the divorce.  And, the sooner you begin the process the better.  So, don't wait until after the divorce.  You can start this immediately.

Once you've obtained the accounts, you can imrpove your credit by using the cards and then paying them off each month.  At this point, it is important that you use these cards only to the degree that you can pay them off each month. Your goal is to establish a favorable credit history, not to run up a bunch of debt.

The fifth step in our series on preparing for divorce: Document and Safeguard Personal Property.

Inventory and photograph your household furniture, art, jewelry and other items of value. Inventory and photograph the contents of any safe deposit box or family safe your family may own. Also, photocopy any important documents in the safe or safe deposit box (if you did not already do so when collecting the financial records).

It is unfortunate, but often these documents and property will “disappear” once the divorce process starts so get your proof in place now. 

Additionally, you may want to consider safeguarding any items of particular value (either monetary or sentimental) which are small in size. I am referring primarily to things like the jewelry your mother passed down to you, your father’s fountain pen, your high school year book, your childhood photo albums, etc.  Your spouse may not share your desire to divorce with dignity.  Better to safeguard those items that are particularly difficult to replace.

Note that I am not suggesting you empty the house of its contents. That is a sure way to escalate the divorce and guarantee that you will not have a civilized divorce. Things like dvd players, camcorders and laptops can be replaced. Just document those on your inventory and photograph them for proof in the event it is ever needed.

The next step in preparing for divorce is to make two budgets (one that shows the situation in the house before the divorce filing, and one that is your estimated budget for after the divorce).

Most folks don't like to prepare one monthly budget, so I know I'm asking a lot to suggest that it is helpful two prepare two of them.  There is a method to the madness though.  It is important to know what it costs to run your household currently.  Equally important is to have an understanding of what your costs of living will be after the divorce. Let’s take each in turn.

A. Know your current monthly budget

Knowing the monthly budget is important for the following:

1. In an alimony case, it is critical to show the standard of living and the financial need.
2. It is helpful in assessing specific needs of the children that may not be covered in basic child support (e.g. particular medical needs or private school expenses).
3. It will help you in planning your post-divorce budget.
4. If your spouse is self employed and under reporting his income, showing that monthly expenses exceed what they claim they make can show they are attempting to hide their true income.
5. A judge may utilize this information to determine temporary support while the case is pending.
6. You should know this stuff in order to properly manage your finances whether you are getting a divorce or not!

Continuing our series on practical steps to take when it becomes obvious that divorce is imminent, we are now on to step 3.  Step 3 is simple, but important.

Step 3 is to make photocopies of all of the pertinent financial documents.

As you gather the important financial documents, you should make two copies of each of them.  One is for you and one if for your lawyer.  Keep your copy in your divorce notebook or file folder.  It is important to keep a list of what documents you have, what documents you still  need, and which of them you have given to your lawyer.

Each case and each lawyer may require a unique set of documents.  But, some of the common ones will include at least the following basic ones:

• Income tax returns for at least 3 years;
• Most recent pay stub showing year to date income;
• 12 months statements on every financial account (including retirement accounts);
• 12 months statements on every credit card or line of credit; and
• Deeds for all real estate owned by either party individually or jointly.

Your lawyer will need documentation showing your income (if you work outside the home) and the income of your spouse. This is important for a number of reasons, but primarily for child and spousal support.

If your spouse is a salaried employee then your job is easy. Obtain a copy of the most recent pay stub and the most recent Income Tax Return. If you do not have access to either of these, you can obtain a copy of the Income Tax Return by requesting it from the IRS.

Complete Form 4506, Request for Copy of Tax Return and mail it to the IRS address in the instructions along with a $39 fee for each tax year requested. Copies are generally available for returns filed in the current and past 6 years. You can download the form at www.irs.gov.

If your spouse is self employed, then the job of determining their income becomes much more difficult. This is why discretion about your divorce plans is important. You may want to discreetly question your spouse (or if he has one, his business partner or his partner’s spouse) about income. You can attempt to get copies of bank account statements and financial statements of the business. 

Another good way to prove income and assets of a self employed spouse is to obtain a copy of a loan application or net worth statement that they may have submitted to a bank or other lending institution for a loan.

Sometimes it is difficult to prove the actual income of a self employed spouse. At this point, gather the information you can. In the case of a self employed spouse, your lawyer will likely have to help you by using the discovery process to obtain and analyze additional information.

We are still on Step 2 of Preparing for a Divorce.  Step 2 is "make an accounting of the family finances."  We've discussed determining what you own.  This step requires you to determine what you owe.

You will need to make a determination of all of the debts of the marriage without respect to the name in which it was incurred.The Judgment of Divorce will need to address who is responsible for the debt whether it is in your name, your spouse's name, or joint names.

I recommend that each of my clients obtain a copy of their credit report.  This allows you to make sure that you know of all of the debt that is in your name.  It is not unusual for a spouse to have incurred debt in the other spouse's name without their knowledge.  If that has happened, you need to know it before the divorce is final, not after.

There are many ways to obtain a copy of your credit report.  You can request a free copy once per year at www.annualcreditreport.com. 

Once you see what all debt exists, obtain copies of the statements on these accounts to determine the balances.  You may also need the statements if your spouse has made large or inappropriate purchases on the cards.

If you cannot find credit card statements on each of the accounts, contact the credit card company directly and request they send them to you.  You may want to check their websites as you might be able to make the request online.  I normally want my clients to get a minimum of 12 months worth. Check with your lawyer to see what he recommends.

We are on Step 2 in our series regarding preparing for divorce.  Step 2 involves making an accounting of the family finances.  This includes determining what you own.

For some, that may be easy.  If you have a good handle on the family finances, then you are a step ahead.  If not, then it is time to do your homework.

Many of the assets of the marriage will be obvious - the home in which you reside, financial accounts, vehicles, recreational vehicles, etc.  Others may not be so obvious - these include things like artwork, bearer bonds, a spouses deferred compensation, proceeds from a pending lawsuit, etc.

Then there is the possibility that your spouse is hiding assets (this is more likely if they are the ones initiating the divorce or if divorce has been discussed previously).

Review all possible assets.  Attempt to gather documentation regardign each one including present value, where possible.  Especially look for any recent appraisals of real estate.

If your lawyer is charging you hourly, then any of this information that you are able to gather should save you a lot of money.  If there are documents you are not able to obtain, your lawyer may have to get them through the discovery process.

Step 2:  Make an accounting of the family finances

The next thing you will want to do is to gather as much information as you can in order to get a clear picture of your family’s financial situation. You may already have a firm handle on this, if you are the one that takes care of the finances in your home. On the other hand, you may have no idea what you and your spouse own or owe. 

One of the primary functions of the divorce process is to make a division of the assets and debts of the marriage. In order to get a fair division, you must know what there is to divide.

This is a three step process:

A.      Determine what you own.

B.      Determine what you owe.

C.      Determine income (both yours and your spouses).

I will cover each of these in more detail in subsequent, separate posts.

This post will be the first in a series that addresses the steps to take when it becomes apparent that a divorce may be imminent. Understand that I am not encouraging divorce. I am, however, encouraging you to protect your interests and make prudent preparations if a divorce is going to take place.

Step 1: Find a Wise Guide

An experienced divorce lawyer I know is fond of telling his clients that you don't need a lawyer to get a divorce, but you need them for the consequences of your divorce. He is right. You can likely get a divorce by finding some forms on the internet or hiring a lawyer that advertises for cheap uncontested divorces. If you have no children, a marriage of only a year or two in duration, no assets or debts have been accumulated during the marriage, and you and your spouse agree on everything, then you probably don't need a divorce specialist.

Look for a lawyer that has at least 5-10 years experience practicing primarily divorce and family law. Find out the lawyer's philosophy regarding litigating cases versus settling them. My personal opinion is that you should want a lawyer who makes it a priority to attempt to acheive a fair settlement for you, but who is capable and willing to litigate the case before a judge.

This recent article from The Oklahoman revisits some of the tax issues arising from divorce cases. According to the article and to my surprise, there are many divorcing spouses that do not realize that periodic alimony is included as income for tax purposes (don't there lawyers explain this to them?). So, because taxes are not withheld, they are surprised in April to find out they owe taxes on all of the alimony received in a given year. The percentage will obviously depend on the recipient's tax bracket.

My suggestion is to take 25% - 30% of each alimony check received and put it in a separate "tax account" to be used only at tax time to pay this obligation. I also recommend considering an ING Direct online account for this purpose. This account is currently paying 4% APR, which is better than most bank checking or savings accounts, and the money is liquid. Additionally, you link the ING account with your normal checking account and it is easy to make transactions into and out of the account online.

Also remember that if you want more in depth information, go to www.irs.gov and download publication 504, the tax guide for Divorced and Separated Individuals. Or you can access a pdf version here.

If you have any questions about the implications your divorce case will have on your tax situation, discuss it with your CPA or tax planner. The time to have that conversation is before the divorce is finalized.

The Internal Revenue Service recently issued a Notice (2006-20) which postponed deadlines for filing certain tax returns and the payment of taxes until August 28, 2006, for those affected by Hurricane Katrina.

The Notice applies to eleven Alabama counties, including Baldwin and Mobile counties. If you are considering utilizing this option, contact your tax advisor to make sure you qualify and that you properly "self identify" as a Katina victim as required under the Notice.

A March 15, 2006, Wall Street Journal article points out the difficulty that spouses and former spouses are having in seeking Innocent Spouse Relief from the IRS. When you sign a joint income tax return with your spouse, you and your spouse are jointly responsible for the taxes, interest or penalties on those returns unless you qualify for innocent spouse relief. That means that under most circumstances, the IRS can collect the entire amount owed from either party.

When you claim the "innocent spouse" defense, you argue that you did not know and had no reason to know about any under reporting of income or other wrongdoing associated with the filing of the return and that therefore you should not be held responsible for paying any additional taxes, penalties or interest due.

According to the article the IRS has taken a renewed interest in enforcement, due in part to growing concern of the budget deficit. The article sites a recent report that states that of the nearly 50,000 innocent spouse claims received by the IRS in 2005, only 21% were allowed in full and another 8% were partially allowed.

The moral to the story: if you have even a hint of impropriety, do not sign a joint return. As a divorce lawyer, I would also add that if a divorce is imminent then before signing a joint return, talk to your lawyer about the implications first.

Note: I would link to the Wall Street Journal story but it is not available on wsj.com without a subscription. If you are a subscriber and have acces to the Journal online, you can go to the above link and do an article search for "Innocence in Tax Fraud" and it will pull up the article.

Also, you can download the IRS publication describing and explaining Innocent Spouse Relief here.

This article from the Kansas City Star describes the process called collaborative divorce.

Collaborative divorce is an alternative way for divorcing spouses to resolve their disputes without going to court. Although it is a relatively new approach, having only originated in the early 1990's, it is quickly spreading throughout the country. The latest estimates are that there are approximately 200 different groups of lawyers that have joined together in associations to promotre and practice collaborative divorce. It seems like this might be an idea whose time has come.

For those of you that have had personal experiences in the collaborative divorce model, I welcome your feedback by direct e-mail or in the comments section. I am currently involved in a project to begin a collaborative divorce practice group in Alabama. As information on that effort develops, I will post about it here.

A recurring issue in my divorce practice is how to address joint indebtedness. Often the parties will agree that one party or the other will pay and be solely responsible for a debt that is in the parties' joint names.

However, what most of my clients do not realize is that even if their spouse if agreeing in the divorce to pay the debt, they still have financial exposure. They often do not realize that the Divorce Decree's provisions about who is responsible for the debt does not and cannot alter the underlying debt. The credit card company, bank, or other creditor is not bound by your Divorce Decree.

I recently came across an article that explains this issue well. If you are going through a divorce and have joint debt with your spouse, this is a must read.

Download the file here.

It is time to start thinking about getting 2005 tax returns filed. This article contains ten tips for tax payers who have recently separated or divorced. It covers all of the basics including filing status, tax credits, etc.

Also, if you want more in depth information, go to www.irs.gov and download publication 504, the tax guide for Divorced and Separated Individuals. Or you can access a pdf version here.

The Alabama Court of Civil Appeals recently issued an opinion in Buchanan v. Buchanan which addressed the issue of market fluctuations in retirement accounts. The facts in the case are common: husband and wife divorce, wife is awarded 50% of husband's retirement account, the parties and/or their lawyers do not process the Qualified Domestic Relations Order to effectuate the transfer from Husband to Wife. Over three years later, the wife files a petition to hold the husband in contempt of court for failing to transfer her 1/2 of the retirement account.

Unfortunately for the parties, by then the value of the account had been reduced from $77,000 to $43,000 due to market fluctuations. The question was should the wife get 1/2 of $77,000 or 1/2 of $43,000? Who should bear the loss in value that occurred between the time of the divorce to the actual division of the accounts? The Appeals Court found that each party should share the market loss, which meant the wife would only get 1/2 of $43,000. The net result is that she lost $17,000 because a QDRO was not immediately prepared to divide the account.

The commonly held opinion among many divorce professionals is that the month of January sees an inordinate amount of people filing for divorce. This article at Market Watch gives some possible reasons why that is so and discusses the first steps divorcing couple should take.

The article is worth a read. Among my favorite of their tips: immediately get a credit report (I've previously given that advice here where I described how to obtain a free copy online), pick your battles wisely, and try to shield the children from any ugliness that emerges.

The Indy Star has this article posted today. It focuses on the top 10 mistakes that men in divorce make and the top 10 mistakes that women in divorce make.

The article does contain some nuggets of wisdom so I offer it for your consideration. But, also consider these two caveats: (1) some of the advice is specific to Indiana law (for example the tip that says "fault" does not play a part in the property settlement - it does in Alabama), and (2) some of the tips are brushed with too broad a stroke - which is a nice way of saying I don't agree with them. Specifically, one of the tips states that Guardians Ad Litem (lawyers appointed to represent the children in custody cases) typically side with the mother in custody actions. It is my experience that in Alabama, most GALs look at what is in the best interests of the child, and do not enter cases with an automatic bias based on sex.

I came across this article from the St. Louis Post-Dispatch. It is has some very good advice about the financial implications of divorce. I especially echo the advice regarding both spouses having a complete understanding of household finances. Not only is it helpful in the case of a divorce as this article points out, but it also seems to me to be a foundational communication issue in a good marriage. But, I continue to talk to clients who do not know their household financial picture because their spouse has kept them "out of the loop" regading income, expenses, assets, and debts. That can be a costly mistake for a number of reasons. Don't you make it.

I also found this nugget of statistical information that I had not heard before: Average length of a first marriage that ends in divorce: 8.2 years for men, 7.9 years for women, according to the Census Bureau. The eight year itch, I guess.

MSNBC has posted an article on traps to avoid if things get ugly. It is called Covering Your Assets in a Divorce. It generally contains good advice, but here's my favorite quote: If you want to be smart about divorce, do your homework and keep your emotions out of it. Splitting is rough enough without the anger.

More smart, less emotion. I know it is easy to say and hard to do, but it is the key to reducing the pain and expense of divorce.

The Washington Times posts an interesting article here on the effects of divorce on children.

The brief article addresses two different views of divorce held by researchers on the effects of divorce on children. Elizabeth Marquardt takes the position that parents should fight harder to save their marriages because of the effects that it has on children. On the other hand, Vicki Lansky emphasizes that what is important is the way the parents' divorce unfolds, not the fact that the divorce itself occurs. Both have authored books on divorce.

I came across two articles on the web regarding steps to take in order to protect yourself financially in the event of divorce. CNN Money has this article on how to Protect Your Wallet in a Divorce, while MSNBC explains how to Protect Your Business in a Divorce.

Thanks to fellow divorce law blogger, Stephen Knight for the tip.

Here is the next installment of the Fort Wayne News Sentinel's series on 20 Tips for Divorcing Spouses. This installment contains tips 9-12. I linked to tips 1-4 here, and tips 5-8 here. This installment contains good advice as the others have. But, I will make one comment about Tip 9. There, the author cautions against placing restrictions on your ability to relocate in the future (this applies in situations where there are children involved and the non-custodial parent does not want the custodial parent to move away with the children).

In Alabama, we have a fairly recent statute called the Parent-Child Relationship Act. This statute itself potentially places restrictions on a parent's ability to move with the children.

I recently posted about the series that The Fort Wayne News Sentinel is running in which they discuss 20 Tips for Divorcing Spouses. They've released the next 4 (tips 5-8). They are as follows:

Financial adviser, Candace Bahr, posts an article today at the North County Times entitled Choose Divorce Attorney Wisely. The article, found here, contains sound advice. It contains many of the same tips I previously offered in my article, 9 Questions to Ask the Divorce Lawyer (before you write the check).

The Fort Wayne News Sentinel is running a series under the heading "Flying Solo" where they will set out 20 Tips for divorcing spouses. They have released the first four. They are as follows:

Here is a link to an article at MSN Money entitled 10 Steps to a Money Smart Divorce. The article generally contains good advice. Several of these steps are things that I routinley advise my clients to do (particularly the one about getting a copy of your credit report).

One word of warning though - one of the suggested steps is to close joint accounts. This can often be a good idea, but many jurisdictions in Alabama enter a standard Pre-trial Order of Court in every divorce case which expressly prohibits either party from closing joint accounts. So, before you do so, make sure you consult with your lawyer and that you understand any outstanding court orders that may prevent you from taking the proposed action.

It is not unusual for spouses to attempt to hide or undervalue assets during the divorce process. Here is a list of areas to look for potentially hidden and undervalued assets. It is from Kansas family law blogger Grant Griffiths. If you think your spouse may be participating in this type of unethical conduct, be sure to bring it up with your lawyer so the two of you can work together to uncover such practices, if possible. Also, remember that the best time to gather relavent financial information and documents is before the divorce is filed. It is amazing how often such documents "disappear" after the divorce is filed.

A recent study by the National Marriage Project at Rutgers reports that the divorce rate dropped last year, continuing a downward trend from 1980. That is the good news. The bad news ...

In our last pose, we mentioned the recent study that found the negative health consequences of divorce. Here is an article that has some practical tips to help you reduce the stress of a divorce. It is found at www.divorcemagazine.com, which contains a wealth of articles for people going through divorce.

According to a new study from Duke and the University Of Chicago that looked at the long-term health consequences of people who are married, divorced, widowed, remarried, and single.

Researchers found that people who had a disruption of marriage, like divorce or death, were in worse health than those who remained married.

Here is a link to the story.

A prospective client recently asked me whether or not she could receive a portion of her spouse's retirement account in her upcoming divorce. I explained to her that in Alabama, if the parties have been married for 10 years preceding the filing of the divorce complaint, the court has the discretion to award them up to half of the value of the spouse's retirement accounts that accumulated during the marriage.

I suggest that all of my clients in divorce cases check their credit reports. Many of them are surprised at how easy it is for an estranged spouse to obtain credit in their name without their knowledge. As of June 1, 2005, Alabama residents can get a free copy of their credit report at www.annualcreditreport.com. With the rise of identity theft, even if you are not going through a divorce it is always a good idea to keep tabs on your report.

The law firm of Ullman and Allen recently posted their Top Ten List of tax issues in divorce. The failure to consider the tax ramifications of a divorce settlement is one of the biggest mistakes made by parties and even their lawyers. #10 on their list is "Get professional advice." I echo that and suggest that often that means getting your divorce lawyer together with your CPA to analyze potential tax consequences of a proposed divorce settlement. Thanks to Grant over at the Kansas Family and Divorce Law Blog for pointing me to the list.

One of my goals in helping families that are in the process of going through a divorce is to help them reduce the pain and the expense that is often associated with the process. I have written an article that outlines nine ways you can reduce the pain and expenses of your divorce case. I hope you find it helpful. And, if you know someone going through a divorce, feel free to pass it along.

Selecting the lawyer that will represent you is one of the most important decisions that you will make in your divorce case. You should try to find a lawyer who is skilled, competent, and who regularly handles family law and divorce cases. Seek someone who is responsive and willing to communicate with you throughout the divorce process. Ask for recommendations from your friends and family members, but in the end, trust your own judgment.

Schedule a consultation appointment with the lawyer. This will give you an opportunity to evaluate how you are treated by the staff and will give you some time to interact with and interview the lawyer. After spending thirty minutes to one hour with the lawyer, you should have a good feel for whether he or she is the right lawyer for you. One factor that is often overlooked is whether a lawyer's personality compliments yours. You divorce lawyer is someone with whom you will be sharing many intimate details of your life as well confidential financial information. He or she must be someone with whom you are comfortable and whom you trust.

During the initial consultation with the potential lawyer, you may consider asking him the following 9 questions: