A divorce can be handled one of two ways. Either you go at each other hammer and tongs, in an attempt to extract the last drop of blood, leaving scorched earth behind. Or you and your attorney can treat the other spouse/attorney with respect, decline to fan the flames, and focus on the issues which need to be resolved: openly disclosing finances, submitting reasonable positions, and considering necessary changes if supported by a rational basis. Then if one side persists in unreasonable demands, your attorney can show the court why only your proposal is reasonable.
Though playing hard ball may seem to garner a few dollars more in the short term, in the long run the second approach is almost always better. How you deal with each other during the divorce will affect how you interact afterwards. When you have children, you have to deal with each other while they grow up. You won’t always agree, so pick your battles. Conflict between households hurts your children. Having a working, civil relationship with the other parent helps the children, so long as health and safety are protected.
Tuesday, December 18, 2007
Friday, December 7, 2007
Greatest Cause of Divorce Conflict
In many divorces, the greatest cause of conflict is anxiety over:
-What mudslinging is the other side going to say about me?
-Are they going to try to extract the last ounce of blood?
-What is my future budget going to be?
-When will I be spending time with the children?
In those cases, negotiating with proposed final orders at the outset (Findings, Decree of Dissolution, Parenting Plan, Order of Child Support & Worksheets) can resolve those uncertainties, by showing exactly what you want the judge to order.
-Agreed orders usually don’t need to say much about why the parties want the agreed relief, so criticism is unnecessary. Courts favor agreements in divorce cases, so a judge will likely sign agreed orders, even if one party later changes their mind.
-The financial proposal is there in black and white, addressing all issues. You may indicate that you’re also open to further negotiation, so long as a reasonable basis is provided for requested changes.
-The schedule with the children should be specific, so anyone looking at the parenting plan could say which parent the children should be with on any given day.
Putting “settlement negotiations: not admissible” on proposals prevents the other side from using a generous offer in evidence if negotiations fall apart. Finally, given the stress and emotional turmoil in divorces, it’s a powerful negotiating tool to present the other side with papers which will effectively resolve all uncertainty with a stroke of their pen.
-What mudslinging is the other side going to say about me?
-Are they going to try to extract the last ounce of blood?
-What is my future budget going to be?
-When will I be spending time with the children?
In those cases, negotiating with proposed final orders at the outset (Findings, Decree of Dissolution, Parenting Plan, Order of Child Support & Worksheets) can resolve those uncertainties, by showing exactly what you want the judge to order.
-Agreed orders usually don’t need to say much about why the parties want the agreed relief, so criticism is unnecessary. Courts favor agreements in divorce cases, so a judge will likely sign agreed orders, even if one party later changes their mind.
-The financial proposal is there in black and white, addressing all issues. You may indicate that you’re also open to further negotiation, so long as a reasonable basis is provided for requested changes.
-The schedule with the children should be specific, so anyone looking at the parenting plan could say which parent the children should be with on any given day.
Putting “settlement negotiations: not admissible” on proposals prevents the other side from using a generous offer in evidence if negotiations fall apart. Finally, given the stress and emotional turmoil in divorces, it’s a powerful negotiating tool to present the other side with papers which will effectively resolve all uncertainty with a stroke of their pen.
Tuesday, July 24, 2007
Parenting Plans for Teachers
If teachers with children are going through divorce, their occupation raises some aspects which should be considered when drafting the parenting plan’s residential schedule (what used to be called custody and visitation.)
1. Hours: Typical school hours start early and may end before 5 PM.
2. Summer: The large block of time off for many teachers in the summer provides a prime opportunity to spend extended time with the children. In Washington, the parenting plan has a separate section for the Summer Schedule, which is aimed at the normal day-to-day schedule. However, you may want to specify that most of the children’s Vacation Schedule (a separate section) with the teacher-parent shall occur in blocks of time during the summer, especially since it affords opportunities for lengthy travel.
3. Holidays: The standard parenting plan form only specifies certain holidays. Depending on the school calendar and the parents’ religious beliefs, more (or less) may be specified, including Teacher Learning Improvement Days, Professional/Conference Days, or Easter.
Jewish families may wish to address their holidays, including language such as:
Jewish holidays shall start from two hours prior to sundown and end two hours after the sundown at the end of the holiday. “Passover Eve” means the entire calendar day (midnight to midnight) which includes the first evening of Passover. “The first day of Passover” means the entire calendar day (midnight to midnight) following “Passover Eve”. “Yom Kippur” is a single period of 28 hours. “Rosh Hashanah” means the 28-hour period beginning 2 hours before sunset on the day Rosh Hashanah begins. “Sukkot” means the first two full days of the Sukkot seven-day holiday, beginning two hours before sundown before the first full day of Sukkot.
Monday, July 23, 2007
Dividing Retirement Benefits
Because Washington is a community property state, any asset acquired during the marriage is presumed to belong to both spouses, regardless of whose name it’s in. That includes wages and employment benefits as well as houses, stocks, and cars.
Transferring all or part of tax-deferred retirement benefits requires special handling. Dividing a 401K or equivalent account (similar to a retirement savings account, with contributions taken pre-tax from the employee’s wages – sometimes with additions from the employer) or a pension benefit (the right to receive $X per month upon retiring after a certain age) requires a separate court order called a Qualified Domestic Relations Order (“QDRO”). The QDRO has to clearly state either the dollar amount or the percentage of the retirement benefit which will go to the employee’s spouse. Many employers have sample QDROs modeled for their specific retirement plans. Since the QDRO has to be approved (“qualified”) by the retirement plan’s administrator, even if it has been signed by the judge, it’s a good idea to use the administrator’s sample QDRO form if they have one.
A QDRO is not needed to divide an Individual Retirement Account, so long as it is rolled over directly into another IRA. QDROs also don’t apply to federal or state retirement benefits, which have their own rules.
Dividing a 401K-type account is easy: it’s a specific sum of money, divided as agreed. For example, the non-wage earner spouse may receive $55,000 out of an account with a $100,000 balance. Of course, the money usually can’t be spent before retirement age without paying an early withdrawal penalty.
Dividing the right to receive a pension’s fluctuating sum payable in the future is more difficult, but the parties are not limited to a percentage division. The spouse desiring to keep the pension benefit may buy out the other’s interest, by determining the present value of the future benefit. An expert may be hired to calculate the present value in a hotly-contested trial, or the parties may accept a mathematical formula which calculates a rough sum using only the functions in the Windows built-in calculator.
Transferring all or part of tax-deferred retirement benefits requires special handling. Dividing a 401K or equivalent account (similar to a retirement savings account, with contributions taken pre-tax from the employee’s wages – sometimes with additions from the employer) or a pension benefit (the right to receive $X per month upon retiring after a certain age) requires a separate court order called a Qualified Domestic Relations Order (“QDRO”). The QDRO has to clearly state either the dollar amount or the percentage of the retirement benefit which will go to the employee’s spouse. Many employers have sample QDROs modeled for their specific retirement plans. Since the QDRO has to be approved (“qualified”) by the retirement plan’s administrator, even if it has been signed by the judge, it’s a good idea to use the administrator’s sample QDRO form if they have one.
A QDRO is not needed to divide an Individual Retirement Account, so long as it is rolled over directly into another IRA. QDROs also don’t apply to federal or state retirement benefits, which have their own rules.
Dividing a 401K-type account is easy: it’s a specific sum of money, divided as agreed. For example, the non-wage earner spouse may receive $55,000 out of an account with a $100,000 balance. Of course, the money usually can’t be spent before retirement age without paying an early withdrawal penalty.
Dividing the right to receive a pension’s fluctuating sum payable in the future is more difficult, but the parties are not limited to a percentage division. The spouse desiring to keep the pension benefit may buy out the other’s interest, by determining the present value of the future benefit. An expert may be hired to calculate the present value in a hotly-contested trial, or the parties may accept a mathematical formula which calculates a rough sum using only the functions in the Windows built-in calculator.
Can I fill out divorce papers without an attorney?
You are certainly allowed to, and virtually all the forms are available online (www.courts.wa.gov/forms). However, they are bare-bones forms, which were designed to ensure that all the necessary main issues are raised, but without language which is often desirable, and may be critical.
For example, the state’s form Parenting Plan lists the following options as Major Decisions:
Major decisions regarding each child shall be made as follows:
Education decisions [ ] mother [ ] father [ ] joint
Non-emergency health care [ ] mother [ ] father [ ] joint
Religious upbringing [ ] mother [ ] father [ ] joint
____________________ [ ] mother [ ] father [ ] joint
(several more blank lines are included)
Most people would just check the “joint” box for the three categories and go on to the next section. But there are a number of other major decisions which often may warrant joint decisions. Examples are: marriage before age 18, entry into the military, obtaining a drivers license, choice of care provider, choice of counselors, summer camps, orthodontia, tattoos and body piercings, etc.
If the parties have no children together, such choices aren’t needed. But there are similar areas in a property division or regarding spousal maintenance (alimony) which would benefit from carefully chosen language, gleaned from a family law attorney’s years of experience. Beware the newly-admitted attorney with a low price unless there are no children, no assets, no maintenance, and no debts.
Apart from drafting help, the county’s procedures may be confusing. An example would be a motion on the family law motions calendar in King County. Although you might have timely delivered the right pleadings to all the right parties (did you remember the working papers?), the hearing will be stricken if you don’t call the correct number during specific hours during the afternoon 3 days, or in the morning 2 days, before the hearing to confirm that it will go forward as scheduled.
A great help with procedure to those representing themselves is the county’s Family Law Court Facilitator’s Office. They organize the forms (though bare-bones) and provide specific written instructions about the steps needed to successfully submit dissolution papers in their county. Though you can obtain the forms for free online, the written instructions alone are worth the minor cost of the document packets.
For example, the state’s form Parenting Plan lists the following options as Major Decisions:
Major decisions regarding each child shall be made as follows:
Education decisions [ ] mother [ ] father [ ] joint
Non-emergency health care [ ] mother [ ] father [ ] joint
Religious upbringing [ ] mother [ ] father [ ] joint
____________________ [ ] mother [ ] father [ ] joint
(several more blank lines are included)
Most people would just check the “joint” box for the three categories and go on to the next section. But there are a number of other major decisions which often may warrant joint decisions. Examples are: marriage before age 18, entry into the military, obtaining a drivers license, choice of care provider, choice of counselors, summer camps, orthodontia, tattoos and body piercings, etc.
If the parties have no children together, such choices aren’t needed. But there are similar areas in a property division or regarding spousal maintenance (alimony) which would benefit from carefully chosen language, gleaned from a family law attorney’s years of experience. Beware the newly-admitted attorney with a low price unless there are no children, no assets, no maintenance, and no debts.
Apart from drafting help, the county’s procedures may be confusing. An example would be a motion on the family law motions calendar in King County. Although you might have timely delivered the right pleadings to all the right parties (did you remember the working papers?), the hearing will be stricken if you don’t call the correct number during specific hours during the afternoon 3 days, or in the morning 2 days, before the hearing to confirm that it will go forward as scheduled.
A great help with procedure to those representing themselves is the county’s Family Law Court Facilitator’s Office. They organize the forms (though bare-bones) and provide specific written instructions about the steps needed to successfully submit dissolution papers in their county. Though you can obtain the forms for free online, the written instructions alone are worth the minor cost of the document packets.
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