Archive for Divorce

Therapists and Financial Planners

· December 15, 2020

Divorces involve major transitions, sometimes including children, and always involving finances of some sort.

The premise of this post is that someone going through a divorce may want to include a therapist and a financial planner in their team. In fact, it is best to flip the paradigm, and assume that you should involve a therapist and a financial planner unless…

Involve a therapist unless…

You don’t have minor children; AND
You are not struggling with your mental health in general; AND
You are not struggling with your mental health during the onset of the divorce and the course of the divorce process.

You MAY not need a therapist if 2 and 3 are not an issue (i.e., you are not struggling with your mental health), AND your kids are doing OK, AND you get along well with your co-parent. But that’s a lot of ifs.

Involve a financial planner unless…

You are not financially dependent on your spouse for basic living expenses; AND
You do not have anyone who is financially dependent on you; AND
You have a moderately-good-to-excellent handle on your long-term finances and retirement.

You MAY not need a financial planner if you are self-supporting and expect to be self-supporting in the indefinite future.

One final thought: if you are on the fence about involving a therapist or a financial planner, it is advisable to at least seek someone out to consult. Consulting with a professional, even briefly, is a good way to confirm which is the best option. Better to consult with someone than not to do so and wish that you had.

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Categories : Divorce, Mental Health

Marital Interests in Property Titled in One Spouse’s Name

Posted by Gerald Williams

· April 27, 2020

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The premise of this blog post is a simple one. When you are getting divorced, you and your spouse are splitting assets, including assets that have only one party’s name on the title. That includes the house, cars, recreational vehicles, and other property items. If you are married, it does not really matter that the asset is in your name alone.

This is because all property is presumed to be marital unless one can make a valid non-marital claim to the property item. Non-marital claims include those tied to assets owned before the marriage, assets inherited from family members, or assets acquired after the parties stopped living together as spouses. If the property is titled in one spouse’s name, but that spouse does not have a valid non-marital claim to the asset, then the asset is considered marital, and must be included in the property division.

If the house is titled only in one spouse’s name, both spouses have an interest in the house, and one spouse will have to buy out the interest of the other spouse. It might even be that the titled spouse buys out the interest of the other, non-titled spouse, in which case the title will need to be placed into the name of the non-titled spouse after the divorce process is complete.

This principle applies to debts as well. If one spouse was left off of the mortgage because they had credit problems, that does not absolve that spouse of co-responsibility to repay the mortgage debt.

As for assets that are held jointly, but to which one spouse has a non-marital claim, this principle does apply conversely as well. If one party has a non-marital claim to an asset for which title is held jointly, the joint title (on its own) does not defeat the non-marital claim. There are many instances when one party will oppose a non-marital claim by asserting that the asset is held in joint names. How title is held is not the most important factor; the most important factor is whether the asset is a product of joint efforts (literally or figuratively) as opposed to being traced to before the marriage, to an inheritance, or facts that show an absence of marital funds or efforts.

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Categories : Divorce, Financial Issues

Neutral Vocational Evaluations

Posted by Gerald Williams

· March 6, 2020

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When a couple is divorcing, issues may arise regarding the present earnings, past earnings, future earnings or potential earnings of one or both spouses. This happens most commonly when one party is seeking spousal maintenance (a/k/a alimony), and the other party believes the requesting party is under-employed. That term (under-employed) refers to (a) working less than full-time and/or (b) foregoing the opportunity for higher level earnings. In most cases, the dispute can be resolved by negotiating the issue in conjunction with other financial issues, such as retirement assets or house equity – oftentimes with a mediator.

But if the parties need a vocational expert to weigh in on the issue, most commonly it is because the spouse who would pay spousal maintenance would like to show how much higher the requesting spouse’s income could be. This spouse might be tempted to hire an expert to focus on the potential income and estimate as high as possible. That would require the requesting spouse to hire a competing expert to focus on the realities of the job market and the obstacles and limitations that stand in the way of maximum earnings. If the parties litigate the issue in family court, then the judge is presented with two extremes, neither of which is likely the fair answer to the question. Nor is it likely to be a fair result for the court to simply average the opinions of the two experts. Nor is the court in the best-informed position hearing from experts advocating for one “side” of the legal dispute.

If the parties agree to enlist a neutral vocational expert, they will likely share the cost of the expert’s work (which saves each party half of what they would likely spend on their own experts), and the work product will be a better way to provide the court with an informed record on which to make a decision. Moreover, the parties may avoid the need to let the court decide the issue altogether, if the parties are able to agree that the neutral expert’s opinion is a satisfactory middle ground.

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Categories : Financial Issues

Three Levels of Discovery in Divorce

Posted by Gerald Williams

· September 26, 2019

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When one is proceeding with a divorce and gathering information from the other party, the goal is to be fully informed about all of the relevant facts and circumstances of the case. Whether the case is amicable or not, both parties have a duty of candor and an obligation to provide full disclosure of information to avoid defrauding the other party and the family court. That means that one must respond to the discovery requests of the other party, but must also provide additional information (even if the other party has not requested it) if such information is relevant to a fair and equitable resolution of all the issues in the divorce.

Different cases call for different kinds of discovery. Formal discovery requests include interrogatories (i.e., written demand for answers to specific questions), requests for production of documents, and depositions (i.e., oral testimony placed on record with a court reporter, but not in a courtroom). Informal discovery is the exchange of information without those formalities, and without formal deadlines under threat of a motion to the family court for failure to comply.

Sometimes formal discovery is more than what is needed, and informal discovery will suffice; for instance, in relatively amicable divorce cases. However, sometimes formal discovery is less than what is needed, because of the concern that someone will not be deterred from defrauding the other party and the court. In that event, it may be necessary to enlist the services of a private investigator to track down missing information or expose inaccurate or incomplete records provided by the other party.

I would estimate that roughly three-quarters of cases proceed with informal discovery, avoiding extra time and expense of formal procedures. Relatively few cases (one to two percent) require the involvement of a private investigator, and the remaining minority of cases call for formal discovery.

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Categories : Divorce

Obligation to Disclose Information in Divorce

Posted by Gerald Williams

· July 26, 2018

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Both parties to a divorce have an obligation to each other, and to the court, not to leave out relevant information. It is considered fraud upon the court to allow a divorce to be finalized without full disclosure, not to mention defrauding the other party, if failing to identify an asset would make a material difference to the terms of a divorce.

Consequently, the duty to disclose is not limited to responding to the other party’s requests for information. The duty to disclose includes identifying assets whether the other party affirmatively demands the information or not.

Conversely, if one party seeks information from the other party which the other party considers irrelevant, that does not mean that the information does not need to be provided. Even if the information is truly irrelevant, the refusal to provide the information will likely inflame the situation, and turn a request for irrelevant information into an unnecessary dispute.

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Categories : Divorce

Discovery

Posted by Gerald Williams

· November 26, 2017

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When spouses and their attorneys exchange information in a divorce case, it is called discovery. Formal discovery happens mainly in the form of interrogatories, requests for production of documents, and depositions. Interrogatories elicit answers to questions; and the production of documents provides copies of statements and forms containing needed information. Oftentimes, there are the only two methods needed. A deposition (when someone is questioned on the record, in the presence of a court reporter) is used to follow up on answers to interrogatories, and production of documents, if needed; or to in place of the other two methods if someone is not cooperative. There are other methods, such as a request for admissions and authorizations for the release of information (from third parties), which can be enlisted as well to follow up, or as alternative avenues when someone is not cooperative.

Formal discovery follows certain time frames, such as 30 days to respond to interrogatories and requests to produce, and consequences that the court can impose if a party fails to comply.

Informal discovery dispenses with the formalities, and the fixed time frames, when the parties and their attorneys mutually agree to carry out the exchange of information cooperatively.

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Categories : Alimony / Spousal Maintenance, Child Support, Divorce

The Uncontested Divorce – Part 6 (Personal Property)

Posted by Gerald Williams

· July 27, 2017

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For many couples, it is easy to resolve the issue of “stuff.” Many items of personal property naturally “belong” to one party or the other, especially when each party is involved in different hobbies and leisure activities. Moreover, many items of personal property are easily replaceable or duplicated, such as pots and pans, towels and linens, and small tools and appliances.

Also, if the couple is already living in separate residences, they have already established their separate sets of possessions.

However, disputes over personal property can become the sticking point if emotions run high. If the divorce is bringing out the worst in the couple, and their conflict level, and if there are no children and no real estate to “fight over,” then arguing over unique furniture items or nostalgic memorabilia can cause problems.

The goal in an uncontested divorce is to be able to say when the final agreement is signed, that each party is awarded the items of personal property currently in his or her possession. And for the parties to be able to abide by that.

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Categories : Uncontested Divorce

The Uncontested Divorce – Part 5 (Real Estate)

Posted by Gerald Williams

· April 17, 2017

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Most uncontested divorces involve no real estate. If the parties own real estate, it is a potentially complicating factor. In fact, my earlier proposition (in The Uncontested Divorce – Part 1) – that an uncontested divorce may involve the parties selling the marital home and equally dividing the proceeds – has potential complications.

Dividing the net proceeds equally requires ascertaining what comprises net proceeds. In other words, what is subtracted from gross proceeds to arrive at net proceeds? Perhaps it is as simple as the amount “Paid to Seller” at closing. But perhaps it is not. Is either party owed some recompense for paying the mortgage since the parties decided to terminate the marriage? Were there (or will there be) any fix-up costs to prepare the house for sale?

So the primary proposition is solid. If there is no real estate, it is more likely to be – and remain – an uncontested divorce.

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Categories : Uncontested Divorce

The Uncontested Divorce – Part 4 (Spousal Maintenance)

Posted by Gerald Williams

· January 17, 2017

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Most uncontested divorces are not long on duration. Less time married means less time to accumulate assets, debts and stuff (not to mention children). Therefore, there are less potential issues to cause disputes if the marriage ends. Conversely, most contested divorces involve long-term marriages; the long time spent together can make the break-up complicated and difficult.

Certainly there are case which buck this trend. A couple married for decades may manage to part amicably, including amicable terms for their divorce. And a couple married for a very short time may still have assets, debts or very young children to fight over.

Spousal maintenance (a/k/a alimony) is perhaps the most difficult issue in marriage dissolutions. The variation, case by case, is wild and wide. Property settlements tend to involve some semblance of an equal, or equitable, division of assets and/or debts. Child support is often based on a statutory formula. But spousal maintenance is subject to the court’s wide discretion based upon many statutory factors, and a lot of subjective judgment.

Cases in which neither party owes spousal maintenance most often involve three types of cases. One, a short-term marriage. Two, a break-up between two people whose earnings are pretty similar. Or three, a divorce in which neither party earns a high enough income to have the ability to provide financial support to the other.

In order for a case to be truly uncontested, there needs to be no need for the divorce decree to provide spousal maintenance. If there is the need to provide for spousal maintenance, then the parties need to address the tax consequences, the duration, whether the amount will step down over time, and various other issues. It simply complicates things for one party to provide spousal support to the other party after the marriage is over.

The fact that there needs to be spousal maintenance does not mean that the couple’s divorce will be inevitably long and painful. But it does rule out the prospect of proceeding with an uncontested divorce.

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Categories : Alimony / Spousal Maintenance, Uncontested Divorce

The Uncontested Divorce – Part 3 (Child Support)

Posted by Gerald Williams

· November 11, 2016

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A divorce case involving minor children is less likely to be uncontested that a case involving no minor children. As mentioned in an earlier post, as it pertains to the issue of child support, a case cannot be uncontested unless (1) there are no minor children; or (2) the parties are in agreement that no child support shall be paid.

In Minnesota, child support is based upon statutory guidelines. The parties can agree (or the court can decide) to adopt the guideline amount, or to deviate upwards or downwards. One might say that the issue of child support could be uncontested by simply adopting the statutory guideline amount of support. The problem with that hypothesis is that the calculation of guideline support requires the input of the parents’ respective incomes. If one of the parties is unemployed, it may be necessary to impute a reasonable level of income. (But maybe not.) If someone is self-employed, there is no simple answer to “What is your gross monthly income?” Someone may have bonus income, or work on commission.

Even if the parties agree on an amount of support, there are complicating factors, such as how support gets modified if circumstances change, whether the paying parent needs also to contribute to other expenses of the children (and which expenses, and how much), and what happens when the oldest child turns eighteen.

The point is, unless both parties have sufficient income, and neither party needs to receive child support, the case cannot be considered truly uncontested.

There is also an additional concern if the parties do agree that no child support shall be paid. That is the parents’ ability to be flexible and fair regarding how the children’s expenses get paid on a day-to-day, week-to-week, or monthly basis. This will not necessarily prevent the parties from proceeding with their divorce case on an uncontested basis. But later on, after the case is done, if they do not operate with principles of flexibility and fairness, it is only a matter of time before they have a contested dispute on their hands.

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Categories : Child Support, Uncontested Divorce

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Minnesota divorce attorney, Gerald O. Williams, represents clients in divorce and family law primarily in the communities of Woodbury, St. Paul, Minneapolis, Eagan, Inver Grove Heights, Cottage Grove, Maplewood, Oakdale, Lake Elmo, and Stillwater, as well as the greater seven county metro area including Washington, Ramsey, Hennepin, Dakota, Anoka, Scott, and Carver.

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