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5 Way to Avoid Divorce Mediation

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.

 

 

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What Happens If I Stop Paying Alimony?

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 specific reasons? For example, remarriage is a common reason. If you confirm your spouse’s remarriage, you can terminate your payments without consequence.

You Need a Good Reason 

Second, what is the reason for stopping 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 get a time-time frame that you must restart alimony within. 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 quit working 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

In conclusion, divorce mediation produces agreements that are more detailed than litigated judgments. In divorce mediation with a mediator, you will work through the reasons for terminating or changing alimony. This includes remarriage, illness, injury, retirement at a specific age, or an increase in the receiving spouses’ income. Doing it on your own but without covering specific changes leaves you with a vague judgment. Therefore, this won’t adequately provide guidance for the future.

Hands Holding Home for Parent's Estate Plan

Estate Plan to Protect Your Child From the Other Parent

Hands Holding Home for Parent's Estate Plan

Adult and Children Hands Holding Home.

In considering an estate plan, an important issue for parents is taking care of their children. Single parents often worry about who will provide for their child if they suddenly pass away. As a result, many parents make an estate plan to make sure their child is taken care of.  A parent can also specify what happens to their property, jewelry, and other valuable items.

What happens if you do not trust the other parent to oversee the child’s inheritance? There are ways for a single parent to structure an estate plan to make sure their child has everything they need.

Trusts as Estate Plan

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)
  • Individual 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 firm trusts, to oversee the trust and make sure your child’s needs are taken care of.

Legal Entities As Estate Plan

A family limited partnership or a limited liability company (LLC) can also protect your child’s inheritance. The partnership or LLC’s operating agreement places limits on transfers of ownership interests, real estate, and other assets. An estate planning attorney can advise you if this option works for your situation.

Adult Children

You can also have control over your estate with adult children. Are you concerned that the person your child has chosen for a spouse is not financially responsible? Parents are also concerned an inheritance will end up becoming part of a divorce settlement.

One of the best ways to ensure that doesn’t happen is to set up a lifetime trust. This trust prevents assets from becoming part of a marital estate and not an asset for 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.

 

 

Single Parent Estate Planning

Single parents don’t think about planning for their death.  When many people think of estate planning, they think it is something that elderly people must do. Every adult should address estate planning, especially if you have minor children.  This is also important when you are a single parent and have no co-parenting relationship with the other parent.

Beaver Dam Family Law Attorney

Single Parent Estate Plan

Generally, if you become unable to care for your child because of a medical reason, your child’s other parent would have full custody.  And, full control over decisions for your child.  These decisions include inherited assets from a single parent. The following are some frequently asked questions that many single parents have for a guardianship attorney.

What happens to any assets or property a child inherits from a single parent?

Your child’s other parent will control inherited assets until your child turns 18. It is critical to give instructions on who you want to handle your child’s assets. Most single parents choose a trusted family member or friend to oversee these assets and often designate the same person to be their child’s guardian.  Estate Plan to Protect You Child From The Other Parent

The next step is to set up a trust to protect the assets for your child. You name a trustee.  It is common for the trustee to be the same person named as the guardian. The trustee controls the assets of the trust and decides how to use them to support your child.

Although your child can legally inherit and take control of assets or property when they are 18 or older, you can put instructions in your trust so that the trustee is in control until your child is older and more mature to handle their own finances.

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. Substance abuse and mental health problems affect a parent’s ability to provide adequate care.  Child abuse by the other parent and if a parent is not available because they are in prison means they can not care for your child. 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.

It is best to talk to an estate planning attorney for further information and advice on guardianship.

 

The Tax Cuts and Jobs Act of 2017 and Your Divorce

If you are considering divorce, you may wonder how the tax act of 2017 could affect your final agreement. Congress made changes in many areas including new tax brackets, modified deductions as well as significant corporate tax changes. A lesser known change is the tax treatment of alimony paid upon divorce.

 

What is Alimony?

Alimony, maintenance or spousal support (however it is described in your state) represents a payment from a higher-earning spouse to the other spouse for their support after a divorce.

 

How has Alimony Changed?

Decades ago, higher income spouse (generally husband) paid alimony to the lower-earning spouse for longer periods. In a very long divorce where the wife had no skills, courts sometimes ordered permanent maintenance. In addition, courts have shortened the time frame considering the recipient spouse’s earning capacity through education or experience within a current job.

 

Changes in Comparing Spouses’ Fault

Until 1969, every state in the country considered the fault of each of the parties which affected property division and alimony payments. This could be abandonment, adultery, extreme cruelty, etc. Now, only approximately half the states take fault of the parties into consideration when determining whether to award alimony. Some states have a hybrid system where the parties may waive a waiting period if they agree to a no-fault divorce. The 2017 tax law did not impact the consideration of fault in alimony.

 

Alimony Deduction with the Prior Law

Under the prior law, the higher-earning spouse deducted alimony, maintenance or spousal support and the lower-earning spouse included those payments in their taxable income. By shifting the tax obligation to the person with the lower tax rate, the couple paid fewer taxes overall. Our attorneys at Derr & Villarreal have helped couples find an settlements that minimizes the total taxes paid. 

Here is an example of how it works. Bill is a investment banker 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. He would have adjusted gross income of $260,000. His federal tax would be approximately $62,000. If he didn’t deduct it, his federal tax would have been approximately $82,000. This results in $20,000 in federal tax savings! If Amy included the alimony in her income, her tax would be $15,000. If she didn’t include the alimony, her tax would be $2,000.

If Bill saves $20,000 and Amy pays 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:

 

Spouse Federal Taxes paid if Bill Deducts Alimony Federal Taxes paid if Bill does not Deduct Alimony Taxes Saved
Bill $62,000 $82,000 +$20,000
Amy $15,000  $2,000      -$13,000
Taxes saved by deducting alimony       +$7,000

 

Alimony with the Tax Deduction Eliminated

But under the new law, the government receives more money from divorcing couples because alimony will no longer be deductible for parties who signed settlement agreements after January 1, 2019. 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 in 2018 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 all agreements signed before January 1, 2019 will allow the payer to deduct payments to the recipient.

 

5 Benefits of Hiring a Divorce Lawyer

Hiring a Divorce Lawyer

Family issues are sensitive and often result in heated arguments. You can avoid such arguments by using an attorney. 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…)

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