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5 Ways To Avoid Divorce Mediation

In working with thousands of couples in divorce mediation, I’ve listened to people express regret about what they wish they’d done, what they shouldn’t have done and what they needed in their marriage but never got. These discussions helped form my top five points to help couples who still want to change their marriage.

Intimacy

Intimacy is more than sex. It is closeness, togetherness, attachment, and affection. But you have to be physically present. Constant opposing workshifts or living apart in the same home strain a relationship. One man regretted his choices saying “I always just took my dinner and ate in my shop. I don’t know why. I guess I was just tired. Didn’t know it was that important.” An intimate restaurant is private and cozy. People love a cozy room or cabin where they feel safe and warm. Even if together, if your interactions are not safe and warm, you will still lose intimacy. “Every dinner she just complained about the kids, the dog, the neighbors – even the laundry. It made me want to go back to work.” Marriages with an intimate atmosphere thrive.

Sex

Intimacy is also sex. It’s a way for people to connect, to show and increase love. Don’t withhold sex to punish your spouse because it’s not a weapon. Life, children, in-laws, and work can get in the way. Make space in your marriage for intimate, loving sex. In fact, you may have to change your work schedules or even get a sitter. Sometimes say “yes” even when you’re tired. Once together, break out of the same routine. Try something different, even something small and fresh.

Warm Touch

More than anything else, people going through divorce mourn the loss of touch. I’ve listened to people who have whispered, “I haven’t had a hug in a whole year – not one.” Even when we’ve had a rough day and are not in the mood, we need to give and accept the offered hug. Ten years ago, Tim Russert who moderated Meet the Press died from a massive heart attack. That morning, his wife said, “‘I want to give you a hug; maybe I’ll never see you again.” She said she just had a “feeling.” People-cover-story-Tim-Russert-1950-2008. But since the rest of us really don’t know when it’s our last chance, we should give the hug.

Kind Words

Our words have such great power. We can nuture, support and uplift our partner. On the other hand, we can humiliate, intimidate and belittle. Even without explicit names, “You’re too stupid to get that” is degrading. A wife once said to me, “We have to change because we talk better to complete strangers than we do to each other.” Remember, you can always say, “I love you.” If you can’t bring yourself to those words, it is time to see a counselor.

Counseling Prevents Divorce Mediation

Go Together

Sometimes one partner has repeatedly pleaded and begged to go to counseling. Of those who refuse, the most common response is, “You can go because you’re the one with all the problems. There’s nothing wrong with me.” That same partner is often stunned to be sitting in a divorce mediation session. “Seriously, you never told me that it was so bad.” When reminded about the request for counseling, it still doesn’t register. “But you never said our marriage depended on it!” Here is one major takeaway. If your spouse asks to go to counseling, assume your marriage depends on it. Go. Listen. Try not to be defensive. Don’t quit after two sessions. If you really can’t relate to the therapist, quit. But if you want to save your marriage, promptly find another. Waiting for your partner to call a different therapist might be too late.

Go Alone

If you’ve asked for marriage counseling and were turned down, try going alone. You might be able to recognize and change your own unproductive habits. You might just find a way to be happier and healthier. Unfortunately, you might also find out that you can’t stay married.

Domestic Violence

But there is an exception. If your marriage involves constant control through emotional or physical abuse, couples counseling is not appropriate. The controlling partner needs to engage in domestic violence counseling. This applies to both genders. Almost 6% of male homicide victims were killed by their former or current spouse. If you need help deciding whether this is an abusive relationship, Mayo Clinic has a list of factors. Mayo-Clinic-Domestic-Violence-Patterns  Controlling abusive partners need to get help alone. Similarly, divorce mediation is not appropriate in a marriage with ongoing physical abuse.

Parenting Mode Trap

As my uncle used to say, “The easiest part of children is making them.” Once made, they need our time, attention and love. They need diapers, groceries, stories, clothes, rides, books, spirituality and independence. They need us to cheer them on during their games and like their friends. So, it is not surprising that we slide into parenting mode more often than not. But we have to balance their needs with ours. While it works in the short-term, not paying attention to your marriage is the quickest way to divorce mediation.

Stop Trying to Change Your Partner

It’s Useless

The classic song from Guys and Dolls says, “Marry the man today and change his ways tomorrow.” Remember that was a broadway hit in 1950. If it ever applied, it surely doesn’t now. There’s only one person that we can change and it isn’t our spouse. The better song might be “Man in the Mirror” by Michael Jackson.

Argue Differently

Every marriage has had a time where they repeat the same argument. Whether discipline, money, or work, you feel yourself going around the same problems without success.  More telling, you hear yourself yelling the same exact phrases and getting the same responses. Couples in divorce mediation never got out of that rut.

Consider arguing differently. Listen to the other person’s “side” and restate it before trying to get them to hear yours. Once you restate it (even if you disagree), ask if you got it right. “Is this what you meant?” We all want to be heard and we all listen better after we are heard. Even if it doesn’t work, you’ll at least have a different and possibly more productive argument.

I can’t vs. I don’t

Researchers found that the specific words we use frame the goal to affects our willpower to make that change. It is the difference between “I can’t” and “I don’t.” Two groups of undergraduates whose goal was healthy eating were instructed to think either “I can’t” eat something or “I don’t” eat something unhealthy. Saying “I don’t” eat something is an empowered refusal.  Authors Vanessa M. Patrick and Henrik Hagtvedt found that those who said “I don’t” were significantly more likely to reach their goal. Saying “I can’t” was more of an external focus like “I can’t eat chocolate cake until the wedding.” But saying “I don’t” is an internal focus. “I don’t eat chocolate cake because this is who I am.” International Journal of Research in Marketing Volume 29, Issue 4, December 2012, Pages 390-394

We can apply this research to the changes we want to make. Think about what you are going to change to argue differently. “I don’t respond by yelling” or “I don’t sweat the small stuff.” This will help us be the change we want to see to have the marriage we all deserve.

 

 

What Happens If I Stop Paying Alimony?

Sometimes in divorce mediation, spouses agree to make alimony payments. If you signed your agreement by January 1, 2019, you can deduct those payments from your income. But this changes as described in the 2018 Tax Act.

What if you’ve been paying alimony and stopped? The answer depends upon the facts. You need critical information. What are the specific terms of your divorce judgment? Does it allow alimony to be terminated based upon any specific reasons? For example, remarriage is a common reason. If you confirm your spouse’s remarriage, you probably can terminate your payments without consequence.

You Need a Good Reason 

Second, what is the reason for stopping the alimony? If your spouse objects, they can file a motion for contempt of court. Contempt is an intentional failure to follow the court’s order. The divorce judge can find that you are in contempt. You would be given a time-frame within which you must restart alimony. Restarting will get rid of the contempt. However, if in contempt and you do not restart, the court could order fines or even jail. On the other hand, if you had a serious illness or accident, you would probably not be found in contempt as the failure to pay wouldn’t be intentional.

The most difficult questions are somewhere in between. The reasons you stopped paying are critical. No matter the jurisdiction, the court must see the change as reasonable. This is different from having “good faith” or good intentions. For example, a corporate executive was paying alimony to her spouse. Then she decided to to quit to work in the peace corps. Would the court accept that decision? Probably not. The court might not see it as “reasonable” in light of the specific obligation in the judgment.

Divorce Mediation

Divorce mediation produces agreements that are more detailed than litigated judgments. In divorce mediation with an experienced mediator, you will work through the reasons for terminating or changing alimony. This includes remarriage, illness, injury, retirement at a specific age, or a significant increase in the receiving spouses’ income. If you did it on your own but didn’t cover any specific changes, you are left with a vague judgment that won’t adequately provide guidance for the future.

How Can I Ensure My Estate Is Protected from My Child’s Other Parent?

One of the most important issues for a parent is taking care of their child. Single parents often worry about who will provide for their child if they suddenly pass away. This leads many parents to develop an estate plan that ensures their child is provided for in the event something happens. Not only are the assets of the parent addressed in an estate plan, but the parent can also specify what happens to their property, jewelry, and other valuable items.

But what happens if the child’s other parent is not someone who is trustworthy enough to oversee any inheritance the child receives? Are there ways for a single parent to structure an estate plan to make sure that their child has everything they need — without fearing that some of their money will be used for purposes unrelated to their child’s wellbeing?

Trusts

One way to protect your child’s inheritance from their other parent is to create a trust. Legally, a trust involves three parties:

  • The person who creates the trust (trustmaker)
  • The person who will benefit from the trust (beneficiary)
  • The person who will hold the trust assets for the benefit of the beneficiary (trustee)

When you create a trust, you can choose anyone you want to be trustee. Even if the trust is for your child, you do not have to make the other parent the trustee. You can choose a close family member, friend, or an attorney, like an estate planning lawyer Phoenix AZ trusts, to oversee the trust and make sure your child’s needs are taken care of.

Legal Entities

Depending on the size of your estate and what type of assets and property you have, you can also protect your child’s inheritance by utilizing a family limited partnership or a limited liability company (LLC). The partnership agreement or the LLC’s operating agreement can place limits on any transfers of ownership interests, real estate, or any other assets in the limited partnership or LLC. Your estate planning attorney can advise you if one of these options would work for your situation.

Adult Children

Not only do you have control over your estate regarding young children, but you also have some control over your estate with adult children. It is not uncommon for parents to realize that the person their adult child has chosen for a spouse may not be the best choice. In these situations, many parents are concerned that any inheritance they leave their child will end up becoming part of a divorce settlement if their child’s marriage ends.

One of the best ways to ensure that doesn’t happen is to set up a lifetime trust. In this type of trust, assets are protected from becoming part of a marital estate and therefore are not subjected to any part of a divorce settlement. You can name a trustee who will maintain control over the trust and it will be up to their discretion to approve any withdrawals of assets.

For more information about creating a trust, or to speak with an attorney who may help you create a trust for your child, contact a lawyer.

 

Thanks to our friends and contributors from Kamper Estrada, LLC for their insight into estate planning.

 

Estate Planning for the Single Parent

When many people think of estate planning, they often think it is something that elderly people must do. The truth is that every adult should address estate planning, especially if they have minor children. This can be especially true if you are a single parent and have an acrimonious relationship with your co-parent.

It is important to remember that if something should happen to you, your child’s other parent would have full custody. This means they would also have full legal control over decisions for your child, including financial ones. This could include any assets or property your child inherits from you if you have not made any estate planning arrangements. The following are some frequently asked questions that many single parents have for a Scottsdale AZ guardianship lawyer.


What happens to any assets or property my child inherits from me?

As mentioned above, if nothing has been legally set up by you, your child’s other parent would likely have control over those assets until your child turns 18. If this is something you would object to, then it is critical to leave instructions on who should be in charge of handling these assets. Many single parents in this position choose a trusted family member or friend to oversee these assets and designate this person to be appointed as the child’s conservator upon the parent’s death.

The next step is to set up a trust where all of the assets for your child will be placed. You will have to name a trustee, which will likely be the same person you chose as conservator. The trustee will have complete control over the trust and will decide how and when any funds will be dispersed.

Although your child can legally inherit and take control of any assets or property when they turn 18, you can set the rules of the trust so that the trustee still remains in control until your child is older and will likely be more mature to handle their own finances, as well as be in a better position to not be influenced by others trying to gain access to those funds.


Do I still need to choose a guardian?

Although in most situations the other parent would have complete custody of your child should you pass, there may be situations where you should still name a guardian. For example, there are many situations where a single parent has sole custody of the child. Some of the reasons for this could include the other parent has a substance abuse problem, has a history of domestic or child abuse, or is incarcerated. If you have not had a will drafted that names the person you want to have legal guardianship of your child should you die, then it will be up to the courts to decide and it could end up being someone who you would not have chosen.

 

Thanks to our friends and contributors from Arizona Estate Planning Attorneys for their insight into guardianship laws.

 

Maintenance is Changed by The Tax Cuts Act of 2017

Congress changed many areas including new tax brackets and modified deductions. A lesser-known change is the tax treatment of alimony or maintenance. If you are considering divorce, the Tax Cuts Act of 2017 will affect whether the payer can deduct maintenance. 

 What is Alimony?

Alimony, maintenance or spousal support represents a payment from a higher-earning spouse to the other spouse for their support pursuant to a divorce judgment. Couples can litigate this issue for thousands of dollars or they can use divorce mediation to make this decision. 

How has Alimony Changed?

In the 1980’s, husbands paid maintenance to their wife for longer periods. In a very long divorce where the wife had no job skills, courts sometimes ordered it for life. More recently, the higher-earning spouse pays regardless of gender. In addition, the time frame has shortened significantly. Courts now consider the time the receiving spouse needs to increase their earnings through education. This may be several years, not a decade.

Alimony Deduction with the Prior Law

Under prior law described by the IRS, the payer could deduct alimony or maintenance from their income. The receiving spouse included those payments in their taxable income. By shifting the taxes to the person with the lower tax obligation, the couple paid fewer taxes overall. 

Here is an example of how it works. Bill is a sales manager who makes $320,000 and Amy is a librarian. They’ve been married for 32 years and have no children. Under the old law, if Bill paid Amy $5,000 per month in alimony, he could deduct $60,000 annually from his $320,000 annual income. His federal tax would be approximately $62,000. If he didn’t deduct it, his federal tax would have been approximately $82,000, which is $20,000 more federal tax. If Amy included the alimony in her income, her tax would be $15,000. But if she didn’t include the alimony, her tax would be only $2,000.

If Bill saved $20,000 and Amy only paid an additional $13,000, Bill and Amy together save $7,000 in federal taxes that are never paid by either of them as shown in this table:

SpouseFederal Taxes paid if Bill Deducts AlimonyFederal Taxes paid if Bill does not Deduct AlimonyTaxes Paid or Saved
Bill$62,000$82,000+$20,000
Amy$15,000  $2,000      -$13,000
Taxes saved by deducting alimony       +$7,000

Maintenance with the Tax Deduction Eliminated

But under the new law, the government will receive more money from divorcing couples. That’s because alimony will no longer be deductible for people who signed settlement agreements after January 1, 2019. This is true even if the agreement states otherwise.

In this new scenario, Bill could pay Amy $5,000 per month but without being able to deduct it, his total federal tax remains at $82,000. (This does not take into effect other tax changes such as the elimination of the personal exemption or doubling of the standard deduction.)

The good news is that couples with significant earnings disparity who have decided to divorce can take advantage of the fact that the payer can still deduct maintenance pursuant to any agreements signed before January 1, 2019. After that, they’re out of luck. 

 

How is child support determined and is it required?

In Texas a large number, mostly all, family law cases will involve child support. This article is meant to aid in the understanding of how child support is calculated and determined in a general since. Other factors can contribute to the outcome of a specific case such as a family violence finding, disabled child(ren) or even custom access and possession agreements that call for irregular or no child support. Child support and medical support can be ordered by a judge as part of a: divorce case, custody case (called a Suit Affecting the Parent-Child Relationship), paternity case, family violence case or modification case (if there is already a court order pertaining to the child). If you need a family violence protective order call the National Domestic Violence 24 Hour Hotline at 1-800-799-SAFE (7233). They can refer you to help in your community.

Child support is money that the non-primary parent pays to help with the cost of raising a child, such as the cost of food, housing, clothing, school supplies, daycare and activities. To expand, child support is to be paid to the person with whom the child lives the majority of the time; the primary parent or guardian, usually a parent, but not always. The primary or guardian who is entitled to child support is called the “obligee” or “custodial parent.” A parent ordered to pay child support is called the “obligor” or “non-custodial parent.” It is essential to remember that even if there is no court order, both parents are expected to financially support their child. Some non-primary parents have the misunderstanding that because they leave the home or end the relationship with the primary parent that they do not have to pay until an order is granted by the judge for them to do so. A non-primary parent who does not help support the child may be ordered to pay retroactive support to the primary parent.

If an unmarried father is already providing support, is it necessary to establish paternity? Yes. Even though the child’s father is providing support, he may become disabled, or even die. This way unmarried parents can ensure certain benefits for their children only if paternity has been established.

A common question is if the non-primary parent is entitled to visit the child if he or she is not paying child support? Yes, child support and visitation rights are separate issues. The primary parent must obey the court order for visitation, even if the non-primary parent cannot or will not pay child support. The court can enforce its orders against either parent via your attorney, like a child support or child custody lawyer Arlington TX turns to.

 

What if the non-primary parent gets behind in child support payments or refuses to pay?

If a non-primary parent does not pay child support, he or she is subject to enforcement measures to collect regular and back payments. The Child Support Division uses many ways to enforce child support orders, including: forcing employers to deduct court-ordered child support from the non-primary parent’s paycheck through a Income Withholding Order. They can hold federal income tax refund checks, lottery winnings, or other money that may be due from state or federal sources; file liens against their property and assets, suspending driver’s, professional, and hunting and fishing licenses; and file suit. A judge may sentence a nonpaying parent to jail and enter a judgment for past due child support.

What is medical support?

        Medical support is additional child support a parent is ordered to pay to cover the cost of health insurance for a child. A parent can be ordered to pay medical support by: providing health insurance coverage for the child, reimbursing the primary parent for the cost of health insurance coverage, or paying cash medical support to the Attorney General if the child receives Medicaid. Commonly, both parents are expected to pay 50% their child’s uninsured expenses. For example, if you are ordered to pay $500 per month child support and $150 per month medical support, then the total amount you are ordered to pay is $650 per month.

       

        Guideline’s for child support is slightly different if the non-primary parent has other children that are outside of the said case before the court. Net resources are determine using a table in the Texas Family Code and includes salary, commissions, overtime, bonuses, dividend income, lottery winnings, etc. There are caps and other considerations on child support amounts that may affect your amounts.

How child support is calculated

        Texas law sets the following general guidelines for calculating child support. Child support based on these guidelines is called “guideline child support.”

1 child = 20% of the non-custodial parent’s average monthly net resources

2 children = 25% of the non-custodial parent’s average monthly net resources

3 children = 30% of the non-custodial parent’s average monthly net resources

4 children = 35% of the non-custodial parent’s average monthly net resources

5 children = 40% of the non-custodial parent’s average monthly net resources

6 or more children = not less than 40% of the non-custodial parent’s average monthly net resources

        Can grandparents file for child support to establish support for their grandchild(ren)? The simple answer is yes. If the grandparent can provide proof that the child has been living with and under the supervision of the grandparent for at least a period of six months they can file for child support or a SAPCR. If a grandparent has been appointed the legal guardian of the grandchild and the grandparent needs help financially to support the grandchild, they may file. Also, if the grandparent is receiving government benefits such as TANF or Medicaid they may file.

        In addition, if the non-custodial parent is in jail or prison when the order is made and the non-primary parent does not have any income due to incarceration the law says the judge should not order child support but they are still responsible for arrears and accruing interest. When the non-primary parent gets out of jail or prison, either parent can file a modification case to ask that child support be ordered if their rights have not been terminated due to incarceration.


Thanks to our friends and contributors from Brandy Austin Law Firm, PLLC for their insight into child support.

5 Benefits of Hiring a Divorce Lawyer

Hiring a Divorce Lawyer

Family issues are sensitive and often result in heated arguments. This can largely be avoided by seeking legal help and expertise. Another advantage to seeking a neutral legal professional is that family law is complex. There are many reasons to work with a knowledgeable and experienced family lawyer such as the Divorce Lawyer Phoenix AZ locals trust. Here are five of the most common reasons why someone might hire a divorce lawyer: (more…)