COVID-19 Progress: Courts now taking AGREEMENTS on the Papers which means NO COURT APPEARANCE NECESSARY

Up until recently, the courts were only handling emergency matters, what they call “Priority 1”.  All other matters, no matter how urgent they are to you or if uncontested, had to wait.  Since the beginning of the month, the work the court is handling has been expanding.  The biggest change involves the elimination of the requirement to come to court in order to get agreements approved.  Right now, if you have a full agreement and prepare the necessary paperwork correctly, you can obtain final orders/approvals of agreements in the following matters without having to appear in court:

  • Divorce
  • Legal Separation
  • Custody
  • Visitation
  • Contempt Motions
  • Modification Motions

Attorneys are considered essential workers and have been fully able to work throughout this process.  If you have one of the above matters pending during this pandemic, there is little reason why your attorney is not working on your case to move it forward in an attempt to reach an agreement.  Your attorney has been able to proceed.  If they have not, it is in your best interest to contact them and request they do so.  We do not know if this elimination of court appearances will continue beyond the pandemic response.

If you do not have a case pending but would like to proceed with one, it is not too late to start the process.  If the matter is by agreement, it can likely be completed and filed before this rule changes.

Going to court is not a terrible thing, but most find it inconvenient.  You have to miss work/arrange for child care, travel to court, wait for your turn (which could be a lengthy time) with others, take the stand and publicly testify about the terms of your agreement (which could include personal information).  Had it been an option in the past, most of the clients I’ve worked with would have greatly preferred avoiding court and having their matter approved in private by the judge.  There is also the added benefit of not having to pay your attorney to go to court.  This greatly reduces your cost and should be an added incentive to reach agreements.

Unfortunately, not all matters proceed by agreement and the extent of the disagreement justifies the time and expense of a hearing.  Contested matters are still being filed but have to wait for the courts to be able to accommodate a hearing.  They are only just now starting to schedule contested matters and the dates being given are months away.

If you have any questions or would like assistance with your uncontested or contested matter, please do not hesitate to contact my office.  We have been fully operational, working remotely, and have moved cases forward (and completed some) as much as possible given court restraints and opposing counsel/party cooperation (which hasn’t always been great). We are here to help and will continue to keep you informed as the courts continue to expand services.  Be well.

Written 5/13/2020

Difference Between an Annulment and Divorce

Annulment ct

The main difference between an annulment and a divorce is how the marriage is viewed.  In an annulment, the marriage contract is deemed void or voidable.  If granted, it’s as if the event of marriage never took place.  You are “single,” not “divorced.” In a divorce, the marriage is presumed valid.  In some states, the parties must prove/testify that their marriage has broken down irretrievably with no hope of reconciliation to obtain a dissolution of marriage.

Now, although the contract of marriage was deficient for some reason, this does not mean that the parties just walk away after an annulment as if nothing happened.  The laws provide protection to children and spouses of annulled marriages.  Children are deemed legitimate.  The court, pursuant to the annulment process, is able to make orders regarding custody, child support, alimony and property division as in divorce and legal separation cases.  The same factors that the court considers for these decisions are the same for annulment cases.  Whether you are looking for an annulment or a divorce, if property or children are involved, it makes sense to discuss your situation with a good family law attorney.

It is important to note that there are completely different rules and procedures for a religious annulment verses a civil annulment.  Throughout this article I am referring to civil annulments.  Civil annulments are not common since most marriages are considered valid.  I suspect that many couples who may qualify for an annulment chose instead to proceed with dissolution of marriage actions for privacy reasons since the resulting orders are not likely to be much different.  Those who proceed with the civil annulment likely do so for religious reasons.

Please contact Bellenot & Boufford, LLC for assistance and to discuss any further questions you may have.  There is no charge for the initial phone consultation.

Life Insurance and Divorce

Divorce alimony

Divorce orders often include that one or both parties obtain or maintain term life insurance for the benefit of the children.. or the ex-spouse. This is particularly true when there are financial orders for alimony and/or child support. The idea is to provide a financial cushion in the event that the payor dies, thereby making the weekly support order difficult to enforce. Most payers have no issue with carrying life insurance for the benefit of the children. They want to leave money for the support, education and all around well being of their children if they should die before their children reach maturity. Most payors have a big issue with carrying life insurance for the benefit of their ex-spouse. They usually don’t want to pay alimony when they are alive, let alone after they pass.

Arguments for and against having life insurance for alimony.

Although an order for life insurance by the court is not automatic, it is usually included in negotiations for settlement. It is preferable that the order be specific enough to cover concerns of both the payor and the payee.  If the order results from a negotiated or mediated agreement, the people responsible for the language of the order should take care to be specific. If the order results from the court after trial, the relief requested by the parties should be specific.

What to include in a life insurance divorce court order

Availability: A court can’t order a person who is not currently covered to obtain life insurance as they may not qualify for such insurance or it could be cost prohibitive. What the court can do is order that person to apply for such insurance. But it is not enough to say they have to apply. It would be better to say they have to use good faith efforts to obtain life insurance. It would even be better to state how often they need to apply and that they have to provide proof of both application and rejection or acceptance. This addresses the concerns of the payee.

Cost: it would do good to strive for a specific coverage amount for a specific period but include language that addresses the cost factor. An example would be for a person to be required to obtain coverage for X or as close to X as possible with the annual premium not to exceed Y. This addresses the concerns of the payor.

Proof: Many payees wonder if the payor will follow through with the life insurance coverage requirement, especially if a new spouse or children enter the picture. It is wise to include language mandating that the obligor be required to provide proof of coverage yearly or upon reasonable request. It is even better to require that the payee be listed as an interested party to be notified by the insurance company if and when the coverage lapses. This will allow the payee to address the matter sooner rather than later.

Changes: For the payor, it is worth thinking about automatic reductions built into the order. It is reasonable and likely that as time goes on and support payments are made, the overall amount of future support due goes down.  Some thought and calculations can result in an agreed upon step down in coverage amount every few years or so. This would allow the payor to reduce coverage or allocate some of the coverage amount to other family members.

Compliance: In the event the payor does not comply or maintain compliance then no insurance will be due upon death. It will be of assistance to include a provision that gives the payee a claim as a preferred creditor against the estate of the payor for the amount of coverage not received.

Funds used for stated purpose: It is often a worry of the payor that insurance proceeds meant for the children will not be used for the children and instead be used for the ex-spouse. As the surviving parent, the ex-spouse will most likely gain control of any proceeds left to minor children. A third party trustee can be negotiated and ordered if both parties agree. This usually goes both ways (both parties have life insurance obligations and both want to name third parties). It is unlikely there will be an agreement to a third party if only one party is paying. It is unlikely there will be an order for a third party from the court.

The above list addresses the most common concerns and issues dealing with life insurance but is not an exhaustive list. The suggestions are meant to alert the reader to the complexity of the issue of life insurance and offer some thoughts as to how some concerns may be addressed. It is best to seek the advice of a divorce attorney when crafting divorce degrees, legal agreements or seeking relief from the court.

Contact us to negotiate life insurance in your divorce degree

HOW TO PREPARE FOR DIVORCE (Part 2)

Getting a Divorce

Living Situations to Consider When Getting Divorced

A. Will I have to move out of my home once the divorce process starts?

A lot of people think that someone has to leave once divorce paperwork is filed. This is not the case. In fact, many couples continue to reside in the marital home during the pendency of their matter. It is usually in their financial best interest to do so.

B. Can I force my spouse to leave the house once the divorce starts?

Although spouses can continue to reside together, most would rather not. Some want to force the other out. They are, after all, getting a divorce, right? Assuming circumstances do not warrant a protective or restraining order, the only way to “force” a spouse to leave the home is to file a motion asking the court to make it an order that they leave. This is called a motion for exclusive possession. Once filed, a hearing will eventually be held (assuming no agreement is reached beforehand) where the spouse who filed the motion will have to prove to the court reasons to support a finding that it would be equitable or in the best interests of the child(ren) to oust the other spouse from the marital home. The reason(s) have to be compelling. The other
spouse has to be engaging in conduct that is harmful or unbearably disruptive either to the parties or to the child(ren). The fact that a spouse just can’t stand the sight of the other any longer is not going to be enough. It’s not enough even if the other spouse is rude, causes inconvenience, plays mind games, or conducts themselves in otherwise childish manner. Your attorney will help you determine if the motion is worth pursuing.

C. Can I move out of the house once the divorce is filed?

Many people think if they leave the marital home they will be “charged” with abandonment. If you take off without word and no one knows where you are, and you have no contact with spouse or kids and you do not continue to assist with any marital or parental expenses for many months – if you “Got out of Dodge,” then it is possible you will be considered to have abandoned your spouse. The good news is that hardly anyone contemplates doing that. They just want to not continue to reside with the other in the house while a divorce is pending or about to be started. Assuming you are not taking children with you, this is allowed. Ideally, one would discuss this plan with the other spouse, provide the new address and make arrangements for finances and visitation with the child(ren) at minimum. Other considerations would be continued access to the marital home, continued responsibilities for maintenance of the marital home, continued responsibilities for getting children to and fro, actual payment of the bills, how the parties are going to communicate, etc. Your attorney will assist in identifying all issues, communicating, and reducing all agreements to writing which is normally best practice. Now, if you plan on leaving the marital home WITH the child(ren), then you should really consult an attorney first. If the other spouse does not consent, then your actions can result in a lot of extra time, money, and effort, unnecessary displacement of your child(ren) and an overall bad start to your divorce

HOW TO PREPARE FOR DIVORCE (Part 1)

how to prepare for divorce

I often get a call from someone contemplating a divorce. They want to know what steps they should take before they start. Since that is impossible to answer accurately without more information, I request it. Are they talking about kids, finances, safety issues, evidence, procedure? What, exactly, do they want to know? Here are some of the most frequently asked questions and a brief excerpt of my response. Disclaimer: all cases are different and these answers may not apply to your case, these are not complete answers, nothing herein should be construed as legal advice. Here we go:

FINANCIAL CONSIDERATIONS OF DIVORCE

  1. Some people want to protect money or property from the other spouse. They want to know if they can transfer/hide these assets. This is a big no-no. Not only can an attorney not advise you on how to do this, it would be unwise to do so. It is very hard to eliminate traces of assets that once were. A good attorney will almost always be able to spot the flags of missing assets. And if they can’t find the trail, then a financial auditor will. Once caught, your credibility is shot, making the rest of your case an uphill battle. It is a much better use of your time and money to identify and develop a basis to support your claims for the best possible outcome.
  2. Some people are afraid they will not have access to money once the process is started. This is a valid concern, especially if the other spouse is controlling with the finances and/or the concerned spouse does not earn an income.
    1. If the concerned spouse has access to the bank accounts (if they are joint) and there are any excess funds (funds not needed to cover auto withdrawals and necessary monthly living expenses) then it may be advisable to withdrawal a reasonable amount out and deposit into a separate account in their name. What is reasonable depends on the circumstances. It is important in this instance to keep good records of how the money is spent and to use it for only for reasonable and necessary expenses. Retainer fees for your divorce attorney fall under this category. If there is a real fear that this action may cause the other spouse to become violent, then this is not the best choice.
    2. If there is no access to joint bank accounts or no excess funds to withdraw, then credit cards could be a source for both cash and attorney’s fees. If the credit card is controlled by the concerned spouse, it’s better to just charge what they need for initial expenses, until some temporary support can be obtained. If the credit card is controlled by the other spouse, the concerned spouse may only have a small window to obtain a cash advance or make a charge to obtain an attorney before they are removed as an authorized user.
    3. If the concerned spouse has access to other liquid assets (mutual funds, stocks, etc) these would be able to be cashed for necessary living expenses and attorney’s fees. Again, keep good records as you will eventually need to account for any liquidated funds.
    4. Retirement accounts would normally be the last accounts to use as there is greater chance the tax and penalty implications will be greater. The concerned spouse should consult a tax professional (someone who is not going to report to the other spouse) to determine which liquidation will produce the least financial harm.
    5. If none of the above is an option, then the concerned spouse needs to look to borrow the funds. It is advisable to consult with an attorney and try to determine what a realistic retainer is going to amount to. Then try to figure out what your monthly needs are and plan on at least two months cushion although three would be better. It is in your best interest to be as honest and accurate as possible with whoever you are borrowing from as to what you need. It is usually best to put your loan in writing if you are expected to pay it back.
  3. Some people are uninformed with regard to the household income, assets or bills. They are worried that their spouse is going to try to hide or change information once the divorce process starts. In these cases, it is in the concerned spouse’s best interest to try and obtain copies of all financial records prior to starting the case. Obviously, the search and copying of these records should take place while the other spouse is gone. The copies should be kept in a safe place, apart from the marital home. Ideally, they should go to the attorney representing the concerned spouse.
  4. I get many calls requesting what amount of child support or alimony will have to be paid/will be received pursuant to an impending divorce. No attorney should try to answer this question over the phone. There are various, specific pieces of information that need to be obtained just to do basic support calculations. Then there are many factors that need to be considered (based on the specific facts of your marriage) to determine the likelihood of the results of those calculations.

In short, there is no simple calculation that will answer the questions. At minimum, a full consultation with some intense questioning will likely produce enough information for me to calculate some broad ranges of numbers for child support and alimony, with more accuracy toward child support