Showing posts with label date of separation. Show all posts
Showing posts with label date of separation. Show all posts

Sunday, August 1, 2010

The Un-Divorced




The Un-Divorced
By PAMELA PAUL
Published: July 30, 2010
JOHN FROST and his wife had been unhappily married for much of their 25 years together when his company relocated him in 2000. So when he moved from Virginia to Knoxville, Tenn., he left her behind.

At first, it wasn’t clear what would happen next. Would she follow him? Or would they end up divorced?

The answer: neither. “After a few months,” Mr. Frost said, “we both realized we liked it this way.”

Technically, the two are married. They file joint tax returns; she’s covered by his insurance. But they see each other just several times a year. “Since separating we get along better than we ever have,” he said. “It’s kind of nice.”

And at 58, he sees no reason to divorce. Their children have grown and left home. He asked himself: Why bring in a bunch of lawyers? Why create rancor when there’s nowhere to go but down?

“To tie a bow around it would only make it uglier,” Mr. Frost said. “When people ask about my relationship status, I usually just say: ‘It’s complicated. I like my wife, I just can’t live with her.’ ”

The term “trial separation” conjures a swift purgatory, something ducked into regretfully and escaped from with due speed, even if into that most conclusive of relationships, divorce. We understand the expeditious voyage from separation to divorce, the desire for a clear-cut ending that makes way for a clear-cut beginning. We hardly look askance at the miserably married or the exes who hurl epithets in divorce court.

But couples who stubbornly remain separated, sometimes for years? That leaves us dumbfounded. “I see it all the time,” said Lynne Gold-Bikin, a divorce lawyer in Norristown, Pa., who is the chairman of the family law department at Weber Gallagher. She can cite a docket of cases of endless separation.

With one couple separated since 1989, the wife’s perspective was, “We still get invited as Mr. and Mrs., we go to functions together, he still sends me cards,” Ms. Gold-Bikin said. As for the husband, “He cared for her, he just didn’t want to live with her.”

But at his girlfriend’s urging, he finally initiated divorce proceedings. Then he became ill and she began taking over his finances — a bit too wifelike for him. “He said, enough of this, there’s no reason to get divorced,” Ms. Gold-Bikin recalled.

Among those who seem to have reached a similar conclusion is Warren Buffett, the wealthy chairman of Berkshire Hathaway. Mr. Buffett separated from his wife, Susan, in 1977 but remained married to her until her death in 2004. All the while, he lived with Astrid Menks; they married in 2006. The threesome remained close, even sending out holiday cards signed, “Warren, Susan and Astrid.”

Also in the ranks of the un-divorced: the artist Willem de Kooning had been separated from his wife for 34 years when she died in 1989. Jann and Jane Wenner separated in 1995 after 28 years but are still married, despite Mr. Wenner’s romantic relationship with a man.

Society is full of whispered scenarios in which spouses live apart, in different homes or in the same mega-apartment in order to silence gossip, avoid ugly divorce battles and maintain the status quo, however uneasy. In certain cases, the world assumes a couple is divorced and never learns otherwise until an obituary puts the record straight.

Separations are usually de facto, rarely pounded out in a contract, and family law is different state to state. But even long-estranged couples are irrefutably bound by contractual links on issues like taxes, pensions, Social Security and health care.

Divorce lawyers and marriage therapists say that for most couples, the motivation to remain married is financial. According to federal law, an ex qualifies for a share of a spouse’s Social Security payment if the marriage lasts a decade. In the case of more amicable divorces, financial advisers and lawyers may urge a couple who have been married eight years to wait until the dependent spouse qualifies.

For others, a separation agreement may be negotiated so that a spouse keeps the other’s insurance until he or she is old enough for Medicare. If one person has an existing condition, obtaining affordable health care coverage is often difficult or impossible. The recession, with its real estate lows and health care expense highs, adds incentives to separate indefinitely.

Four years ago, Peggy Sanchez, 50, a Midwest resident, parted amicably from her husband, who has fibromyalgia.

“He would not get medical treatment if he weren’t on my insurance,” she said, and giving him that is less expensive than paying alimony. “Besides, I care about him and want to make sure he gets the medical help he needs,” she said.

There are still sticky issues: Ms. Sanchez’s boyfriend is unaware that she’s still married. Her daughter from a previous marriage views her husband as a father figure. And he got custody of the family dog. But Ms. Sanchez plans to stay separated.

“I don’t have much desire to remarry so there’s no benefit to me from divorce,” she said. “I guess that sounds pretty jaded, but it’s just not as important as it used to be.”

Sharon O’Neill, a marriage therapist in Mount Kisco, N.Y., has seen four cases in the last two years in which couples separated but stayed in the same home. In a depressed market, couples may not want to sell a house they purchased at the market’s height, or one party can’t maintain the mortgage or the other can’t afford a new home.

“The financial collapse has made people say, ‘Let’s not rush into a divorce, let’s see if we can make something else work,’ ” Ms. O’Neill said.

The added value of marriage is also hard to kick.

“Many people I’ve worked with over time enjoy the benefits of being married: the financial perks, the tax breaks, the health care coverage,” said Toni Coleman, a couples therapist in McLean, Va. “They maintain a friendship, they co-parent their kids, they may do things socially together. Sometimes they’re part of a political couple in Washington or have prominent corporate positions. But they just feel they can’t live together.”

What Ms. Coleman finds surprising is that the primary consideration is practical and financial, not familial. The effect of endless separations on the children rarely seems a priority.

“People split up and have these God-awful joint custody arrangements, so you would think that they stay separated for the kids’ sake, but I’m not seeing that,” she said. “It usually comes down to money.”

Others believe separation is easier on the children than is divorce. A 48-year-old social worker from Brooklyn, separated eight years, traded places with her husband in the same home, so that their children would not have to shuttle from one home to the other. The couple had an apartment where each would live when not at the family home.

“In hindsight, it was probably more confusing for the kids,” she said. “But we did it with their best interests in mind.”

But long-term separation can create big problems. If a couple isn’t divorced, their lives are still legally and financially intertwined. If your estranged husband goes on a spending spree, you’re responsible for the ensuing credit card debt. If you win the lottery, that’s community property. Finances can swing wildly, creating an alimony boon or a bombshell should one partner eventually want a divorce.

“I just had a situation where after 15 years of separation, the wife wanted to remarry,” said Elizabeth Lindsey, an Atlanta divorce lawyer. “But over the years, his assets had completely dissipated.” The wife would have profited from divorcing earlier.

A separation can also go on longer than anyone anticipated, even until death, leaving a mess for survivors. In New York State, for example, a spouse, even if separated, is entitled to a third of the partner’s estate.

There’s also the risk that you could lose track of your erstwhile partner altogether. “We see cases, usually with foreign nationals, where the husband goes back to the Philippines, and the wife wants to marry James but she’s still married to Ted,” said Steve Mindel, a managing partner at the Los Angeles law firm Feinberg Mindel Brandt & Klein. Judges now often require that a professional be hired to locate the spouse, to facilitate the divorce.

BUT more often than not, a delayed divorce simply reflects inertia. Celeste Liversidge, a divorce lawyer in Los Angeles, most frequently sees people who are avoiding an unpleasant task.

“It’s often so ugly,” she said. “People get to a point where they can’t live with each other but going through the divorce process is too painful.” A six-month separation turns into years.

One woman, a 39-year-old mother of two from Brooklyn, who like many interviewed for this article wished to remain anonymous, has stayed separated for nearly two years at the suggestion of five lawyers.

“There’s no advantage to getting divorced,” she said. Both she and her husband are in new relationships. Most people assume they’ve officially split. But given the health insurance issue and the prospect of legal fees, she said, “I feel like we could just drift on like this for years.”

Not being divorced is also an excuse not to remarry.

“In my day, we’d refer to a man as a bon vivant, a gadabout who doesn’t want to worry about marrying anyone else because he’s already married,” said Sheila Riesel, a New York divorce lawyer for more than three decades.

In the end, some people just don’t want to divorce. Perhaps one spouse desires it and the other drags his or her feet. Sometimes, people are just confused; separation can be a wake-up call.

In other cases, initiating divorce ultimately serves that purpose. Last year, a 67-year-old professor in New York filed for divorce from the man she married in 1969 and separated from in 1988 after she had an affair with a woman.

“I had images of Vita Sackville-West, but it was very messy and the children suffered a lot,” she recalled. “My husband had been more attached to me than I thought.”

And she considered him a pal; they even took vacations together. “I think I liked that we were still married in some way,” she admitted. “But last year I met someone who minds that I’m still married to someone else.”

And thus, time to divorce. Call it an old-fashioned romance.


A version of this article appeared in print on August 1, 2010, on page ST1 of the New York edition.

Thursday, July 1, 2010

Before Divorce


DIVORCE
Tips by Kelly Chang Rickert, CFLS


Are you headed that way?


Ok, before we even start thinking about divorce - GO TO COUNSELING. Couples AND individual. A lot of problems causing people to divorce may be personal problems. If you can save the marriage in any way, you owe it to the marriage - to the children (if you have them) - to your spouse - and to yourself - to do whatever it takes.

If, however, your differences are sincerely irreconcilable, here are some tips from a divorce lawyer.

1. DELETE your Facebook, MySpace, Twitter, or other social media profiles. You are about to embark in a very painful process. Although you should be able to share with few intimate friends, posting your feelings and experiences, PHOTOS, on Facebook could have negative consequences, including potentially legally adverse consequences. Just trust me on this.



2. Get a new email account. Better yet, if you can afford it, get a new computer. If you are sharing a computer, you need to make sure there is no spyware. If you plan to communicate with anyone (your mom, your therapist, your attorney), through emails - be discrete and careful. I've represented many a client who had full access to their spouse's emails.

3. If you have a prenup, take it out and review it. I always advise my clients who have prenups to keep it in a separate place. It is a bad idea to store your prenups in the same safe deposit box. They always end up missing when you need them the most.

4. Know your finances, especially if you are the "out-spouse". Just because you aren't currently earning income, doesn't mean you need to be dumb about finances. EDUCATE yourself as to the family finances. Even if you do not have statements, you need to keep track of institutions, account numbers, balances. This includes bank accounts, stock accounts, retirement accounts, credit card accounts, life insurance, and tax returns. There is absolutely NO excuse for being in the dark. Knowledge is power.

5. On that note, depending on whether you are the "in-spouse" or "out-spouse", you need to separate accounts immediately upon deciding a date of separation. If you are the supported spouse, it may pay for you to act clueless and draw out the date of separation. You can hire a private investigatore (while acting dumb) to figure out if community assets are being expended, trace accounts, etc. If you are the supporting spouse, and you suspect foul play, you need to immediately do what it takes to show objectively/subjectively a clear date of separation, and open separate accounts, depositing earnings post-separation into these separate accounts, immediately.

6. If you have children, you need to start figuring out a parenting plan. Children are NOT, and I repeat, NOT property to be divided. You need to consider that you are possibly wrecking their lives, and you need to take every step possible - including therapy, to make their little lives go as smoothly as possible during this split. Absolutely, without fail, please work out a parenting plan with your soon to be ex, WITHOUT court intervention. Barring any abuse or addiction, recognize that your marriage is falling apart, but RESPECT their role as the other parent. Suck it up. I know that custody battles seem glamorous, and seriously, "Everyone is doing it,", but the reality is: IT SUCKS AND YOU DO NOT WANT THIS. If there is any fight left in you, you need to FIGHT to get a good working parenting plan. You can do this. Engage the services of a custody mediator/facilitator. WORK IT OUT. I repeat, WORK IT OUT. DO NOT GO TO COURT. Even if you have 750 million dollars, do NOT pay attorneys to fight your custody battle for you.

7. Figure out where you want to live. Discuss it. Understand that if you move out, there may be legal consequences.

8. Budget accordingly. If you've never had to budget, this is painful. But a divorce is going from ONE household to TWO households. You will have 1/2 to live on. It doesn't have to "break the bank", or "take you to the cleaners", but you must recognize that money will be a bit more tight, so maybe skip French Laundry, and take the kids to McDonalds tonight.

9. Find good help. If I had cancer, I would be knocking down the doors of the best oncologist in town. Same with a lawyer. Don't hire an everyday lawyer who defends murder trials, and chases ambulances, and handles divorce. If you are going through a divorce, find a Certified Family Law Specialist to represent you. They will charge more. They've earned it, and you will get what you pay for.

10. Think good thoughts. Finally, whatever is true, whatever is noble, whatever is right, whatever is pure, whatever is lovely, whatever is admirable—if anything is excellent or praiseworthy—think about such things. Divorce is a nasty thing. You don't need to plague your thoughts. This, too, shall pass.

Monday, June 14, 2010

The Importance of a Divorce Judgment!


GETTING TO JUDGMENT
"But I thought I was already divorced!?"
I have practiced divorce and family law for over a decade. HOW MANY TIMES HAVE I HEARD THIS SILLY STATEMENT?
FIRST, obviously, Judgment is important because it concludes your case.

I think many clients confuse Judgment with temporary Orders, which we often see in a divorce case.

In California, there is a waiting period prior to entry of Judgment. (6 months after proper service of the initial papers). Prior to entry of Judgment, temporary Orders are often secured and enforced. (aka "pendente lite", which means pending litigation).
This leads me to the SECOND reason obtaining a JUDGMENT is important in your case.
In a divorce case, though the pre-Judgment orders are "temporary", temporary does not mean they expire automatically. "Temporary" only means until Judgment, or a subsequent Order, is entered.
In one of my cases, the parties were married for 3 short years. Divorce was filed in 1996, and a temporary order was obtained - H to pay W $1000/mo for child support and $2000/mo for spousal support.
After the temporary order was entered, both parties went their merry ways, and assumed their divorce was final.
WRONG.
It is now 2010. W has now filed a case with Department of Child Support Services, and alleges that NOTHING was paid for these past 14 years. There is now 1.5 million owing in back child support, and about 2.75 million owing in back spousal support.
What's wrong with this picture?
EVERYTHING!
Had this case gone to Judgment, there is NO WAY the Judge would have awarded 2.75 million in spousal support; rather, spousal support would likely not exceed the length of the marriage (3 years), so maximum H would have paid would be $72,000. NOT 2.75 million.
In addition, the parties are STILL legally married.
Moral of the story: Temporary orders are insufficient. GET YOUR CASE TO JUDGMENT.

Thursday, January 28, 2010

John and Elizabeth Edwards Legally Separate


John and Elizabeth Edwards separate after love child

BBC

US politician John Edwards and his wife, Elizabeth, have separated, days after he admitted fathering an illegitimate child.

Mrs. Edwards, who has inoperable cancer, had until now stood by her husband of three decades, who ran for the 2008 Democratic White House nomination.

He admitted the affair with film-maker Rielle Hunter in 2008 but had denied her child was his, until last week.

Mr. Edwards called the split with his wife "an extraordinarily sad moment".

"I love my children more than anything and still care deeply about Elizabeth," he said in a statement to the Associated Press (AP) news agency.
Mrs Edwards, 60, has not made a public comment on the separation.

Her sister, Nancy Anania, told AP: "She's doing as well as you could expect.

"I'm really proud of her that, somehow, she's got strength that you rarely see in a person."

Publisher Random House, which released Mrs Edwards's book, Resilience, last year, said in a statement she was "moving on with her life and wants to put this difficult chapter behind her".

When Mr Edwards, 56, admitted the affair with Ms Hunter in August 2008, after a press report, he said it had ended in 2006 and denied paternity.

When he finally came clean in early 2010, the Democrats' former rising star told US media he had been wrong to insist Frances Quinn Hunter, now nearly two years old, was not his daughter.

Mrs. Edwards, who has breast cancer, said then that the whole family was relieved he had owned up.

The child was born on 27 February, 2008, suggesting she was conceived in mid-2007, several months after Ms. Hunter stopped being employed by the Edwards campaign, and in the early stages of the battle for the Democratic presidential nomination.

The story was further complicated by the fact a former aide to Mr. Edwards, Andrew Young, had himself at one time claimed paternity.

Mr. Young is due to release a tell-all book detailing Mr. Edwards's affair, called The Politician, in the next few days.

Mr. Edwards, who also ran for vice-president alongside Senator John Kerry in 2004 and once served as a senator for North Carolina, stepped out of the race for the Democratic ticket in January 2008 after failing to win a single primary.

The nomination was finally won by Barack Obama, who went on to be elected US president.

The Edwards's eldest son, Wade, was killed in a car crash at the age of 16. They have three other children.

Tuesday, January 26, 2010

Date of Separation and Why It Matters in California


DATE OF SEPARATION: WHY DOES IT MATTER?
So why does it matter? Short answer: California is a community property state. In California, the date of separation determines the end of the community.
The date of separation matters in division of property and in spousal support.
PROPERTY DIVISION
For example, John and Jane Smith marry 1/1/2000. They separate 12/31/2000.
Jane wins the lottery on 12/31/00. John wins the lottery on 1/1/01.
According to Family Code section 771, which states, "a) The earnings and accumulations of a spouse and the minor children living with, or in the custody of, the spouse, while living
separate and apart from the other spouse, are the separate property of the spouse. "
SO...Jane's lotto winnings are community, and John's are NOT.
SPOUSAL SUPPORT
For example, John and Jane Smith marry 1/1/00. John moves out 12/31/07, into his own apartment with his girlfriend and remained living with his girlfriend up through the date of trial.
John filed for divorce 1/1/2010.

Although John did not sleep in the family residence, he maintained continual and frequent contacts with Jane and children, including dinner every night in 2008 and 2009. John also maintained his mailing address at the family residence. John also took Jane on 2 trips in 2008. John also took Jane to social functions, friends’ homes, dinners for professional and academic groups, etc. in 2008 and 2009. John also sent Jane numerous Christmas, birthday and anniversary cards, including at least one card, in which John said he loved Jane. John and Jane continued to file joint tax returns and John paid all the household bills. John even brought his laundry home every week and Jane would wash and iron it. John and Jane did not have sex after 12/31/07. At all times during the period of physical separation prior to filing the Petition, Jane maintained she “desired” a reconciliation.
When was the date of separation?
Those are the exact facts of the case of In Re Marriage of Baragry (1977), 73 Cal.App.3d 444. The Court held that the date of separation was 1/1/10, the date of the filing of divorce.
TWO-PRONG TEST
The critical inquiry is whether the parties' conduct evidences a complete and final break in the marriage relationship.
For this, the Court uses a two-prong test to determine the date of separation: Objective and Subjective.

1. Objective Test
To answer the objective test, the court will determine when you started living apart from each other. That usually happens when one of you moves out of the family home. In today’s tough economic times, however, that is no longer an option for some, because it often is too expensive to maintain two separate residences. Even if spouses are still living in the same home, there are ways to ensure physical separation.

As California Courts put it, “Our conclusion does not necessarily rule out the possibility of some spouses living apart physically while still occupying the same dwelling. In such cases, however, the evidence would need to demonstrate unambiguous, objectively ascertainable conduct amounting to a physical separation under the same roof. (Marriage of Norviel) If this is a concern for you, you should always consult an attorney for more information.


2. Subjective Test
Physical separation is not enough to show that you separated. Some people are living separate from each other for extended periods but do not intend to end their marriage. That intent is the subjective part the court will consider. At what point did one or both of you think that the marriage was over? When did you decide that you no longer wanted to stay married? In essence, the court will look at your conduct toward each other to see when the marriage “ended.”

Please note: Marriage counseling is usually a good indicator that you are NOT intending to separate.