The Flop: Finding out what your spouse has and wants in a divorce

The flop is when there is that first exchange of information—someone files a Petition and the other person files an Answer. 

Since every marriage is a little different, how shocking the debts and assets information is depends on how involved both parties were in the family finances.  If you both already have a handle on where you stand financially, this is just another stepping stone on the path to divorce.  If only one party handled the finances, this could be a huge stress inducer or reliever—depending on what the cards reveal. 

Maybe you didn’t know your house was underwater or that your spouse had cleaned out your savings.  Maybe you didn’t realize just how much she had built up her retirement accounts.  This is a great time to step back, absorb the new information and consider your options.

You may be convinced your spouse is hiding assets—especially if they are self-employed or your bank accounts are much smaller than you had expected.  Keep in mind that it can cost a lot of money to bring in a forensic accountant and investigate for hidden assets. If you know your spouse was underreporting income and you signed off on the joint tax returns…are you sure that’s something you want to bring up in front of a judge?  Your attorney can help you get a sense of what your options are and what you could reasonably prove in court.

This is also when you may first learn how your spouse feels you should share custody of the children.  There may be claims of physical or mental abuse, addiction issues, and mental health concerns.  Even when true, these allegations can be devastating to hear coming from someone you love or used to love.  Try to remember that if your spouse is represented, a lot of that language is (unfortunately) the attorney posturing and playing the slow-to-evolve divorce dance. 

Frankly, the older and crustier the attorney, the more likely you are to get an expensive, old-school, high-noon shootout.  Newer attorneys tend to understand that mediation and putting the children first is the way to go.  Of course, since attorneys don’t really trust other attorneys, even two peaceful attorneys are hesitant to bring a bouquet of flowers to a gun fight.  Hopefully they will at least leave the safety on until they can determine the other side’s intentions—and always carry a knife in their boot just in case.

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How Divorce is Like Texas Hold 'em

Divorce is a lot like poker; Texas Hold ‘em to be specific. And not only because you’re probably going to leave the room broke and crying.

When clients come to me, they usually only have their hole cards. Rarely are they pocket aces. Usually it’s more like a King of hearts and an 8 of clubs. It’s actually better to not have “great” cards because it keeps you from being overconfident that things will go your way. You can still lose with pocket aces both in poker and in the courts.

Some lawyers will tell you that you have a winning hand and you should go all in no matter what cards you show them. As Kenny Rogers has wisely explained, you have to know when to hold ‘em, fold ‘em, when to walk away and when to run. Does he ever have a good hand in that song?  I don’t think he ever sings about when to raise or go all in. Interesting. Anyway, not every hand is a hand you want to play. But sometimes you don’t have a choice.

If your spouse decides to divorce you, you need to play out the hand. You might be surprised that your hands are more evenly matched than you first thought. Or you may find that folding and forfeiting the big blind is worth not having to sit at the table with this person for one more minute. When dividing up the assets and debts, remember that the battle can cost more than the reward. Determining if you “won” or “lost” depends on how you view the situation, not on who gets the couch or the savings account.

Unfortunately, family law is rarely just about dividing up assets and debts. You can’t just fold or refuse to even come to the table when the future of your children is being determined. Well you can, but then you’re probably not reading this post.

Lawyers can help improve your odds of a favorable outcome, but they do cost money. In poker, the pot goes to the winner. In the divorce game, it goes to the lawyers. All you get is a lousy t-shirt and all or a share of whatever it was you deemed worthy of fighting for. If you’re only fighting over money, basic math can help you know when to fold ‘em and walk away.

When you can’t agree on custody, the stakes become much, much higher. Sometimes you’re forced to keep calling your spouse’s raises just to stay in the game. It shouldn’t be about who has access to the most money, but unfortunately it often is when one party has parents or grandparents paying the legal fees.

Dealing with a lawyer at this early stage is all about education about the law, exploring possible outcomes, determining your goals and building a relationship of trust and respect with your attorney.

If you want to avoid retaining a lawyer immediately, this would still be a good time to make use of a paid consultation or limited scope representation. This will allow you to get some advice about your situation and the next steps, but let you hold off on coming up with a large retainer until you decide what you are going to do. I offer both a one-time paid in-person consultation and a monthly unlimited email contact plan that might be of use to people still on the fence about hiring an attorney or those who are still in the early stages and just have a few questions.

The best (and worst) thing about this stage is that the odds can change dramatically with the flip of a few cards with minimal betting from either side.

Stay tuned for The Flop

 

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Step Away From the Computer. Facebook posts can be devastating to your divorce or custody case.

Hopefully you already know not to post photos of yourself driving drunk with the kids riding on your lap and steering the car.  But even seemingly harmless posts can cause headaches for you and your attorney. 

Are you claiming that you don’t get to spend enough time with your child?  Well, what if your ex shows up with your Facebook activity showing that during the 2 hours you had your child at the park for “quality time”, you posted or commented eight times and had three notifications that you were playing games?  Does that mean you’re a bad parent?  Nope.  Are you going to lose your kids or your case because it?  Probably not (unless your posting about an upcoming meth deal).  But you will have to pay for the time it takes your attorney to review the information, discuss it with you, and consider if the post or pattern of posts is serious enough to require a response.

Since no one wants to pay an attorney to deal with Facebook posts, here are some tips to make Facebook less hazardous during divorce and custody battles:

1.    Stop posting on Facebook.  It should be a read-only activity until your case is settled.

2.    Change your password, even if you don’t think your ex knows it or could guess it.

3.    Review your privacy settings and make them more restrictive.

4.    If you don’t want to stop posting entirely, then at least ask yourself if you want a judge, your mother, your child’s teacher to read this message before you post it.  No matter how restrictive your privacy settings, it will show up in the hands of your ex at the worst possible moment.

5.    Don’t post any photos of yourself in bars, with new significant others, or doing anything other than wholesome family activities.  If you are out drinking with friends, make sure they know you do not want to be in any pictures.  Period.  Just because you’re not tagged in the photo doesn’t mean that no one can see you and promises that “I’m not going to post this” can be forgotten.  If it’s a group shot of people who don’t get together often, do it in front of a neutral wall, without drinks in your hands, before everyone gets drunk.

6.    Don’t “check-in” at places and remove the location that lists where you are before you post a status. 

7.    Don’t brag about all the stuff you’re buying or trips you’re taking or people you’re seeing.

8.    Don’t discuss your ex or the legal proceedings in any way.  Definitely don’t post any court orders, police reports or custody evaluations online.  Yes, people actually do this.

9.    Don’t friend any new people unless you actually know them in real life.  It could be a fake profile or an old friend of your ex who is trying to gather information.

10. You probably set up your profile a long time ago.  Now would be a good time to go over it carefully to see what you might have written in the “about you” section, pages you might have liked, remove old apps that you gave permission to post to your timeline, etc.

 

Amanda Swanberg, Swanberg Law Offices, St. Paul, MN

swanberglawoffices.com

612-670-9626

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Contemplating divorce? A checklist of things to consider doing.

When you’re just considering divorce:  These are things you can do to be more prepared in case you choose to divorce at some point in the future.  While there are non-divorce related reasons for most of these actions—many married couples have checking and credit accounts in their own names and it’s good to have a detailed record of your valuables for insurance and estate planning purposes—they can still tip off a suspicious spouse that you are considering divorce.  You will need to weigh your need to feel prepared with the possibility that you may tip your hand before you’re ready.  It’s an individual decision that only you can make.

£  Checking Account.  Open a checking account in your name.  If your spouse is aware that you are considering divorce, try to agree with your spouse how you will split the cash in your joint accounts.  If you are still living together, you will need to determine how you will divide household expenses. 

o   If you are worried that your spouse will withdraw/spend all the money in your joint accounts, you may want to consider taking half of the balance and put it in a separate account.  The intent is not to hide it or spend it all, but just to make sure it is available later.  You may want to talk to an attorney about your specific situation before you take this step.

£  Credit Card.  Open a credit card in only your name.   If your spouse is aware that you are considering divorce or if you’re afraid your spouse will max out the cards out of spite, consider closing or freezing joint accounts and working to pay them off with your joint funds or transferring balances to cards that you each hold in your own names. 

£  Cash.  Set aside enough cash to cover two weeks’ worth of expenses.  The intent is not to hide this money, but to have enough to live on should your accounts be frozen.

£  Credit Report.  You should order a free credit report every six months or so to ensure that your spouse hasn’t applied for any more joint credit cards or loans.

£  Safe Deposit Box.  If you have a joint safe-deposit box, make a list of its contents and ask the bank to require both signatures to open the box.

£  PO Box.  Consider opening a PO Box in your name to ensure your spouse cannot access your mail.

£  List of Valuables.  Make a list of the valuable household belongings (jewelry, electronics, vehicles, antiques, other items worth more than $500) including a description, photograph, serial numbers, and copies of title and registration when appropriate. 

£  Passwords.  Change the passwords for your ATM, online bank accounts, email and any other online accounts that your spouse may be able to access.

Once your spouse is aware that you are seriously considering divorce or papers have been served.

£  Complete all the items under “Considering Divorce”

£  Freeze Joint Investments.  As soon as you begin divorce proceedings, freeze all joint investments accounts so that nothing can be withdrawn or loans taken out against them. 

£  Retirement Account.  If your spouse has a retirement account in his/her name, request a copy of the current account statement and documentation on how the plan works.

£  Car Insurance.  Switch your car insurance from a joint policy to a single policy to ensure your rates won’t go up as a result of your spouse’s accidents or tickets.  If you only have one car or if you’re not sure who will end up with each car, you may need to continue the joint insurance until ownership is determined by the court.

£  Life Insurance Beneficiary.  Change the beneficiary on your life insurance policy and any retirement accounts.

£  Powers of Attorney.  Cancel or destroy any powers of attorney that you may have executed which would give your spouse authority over your affairs.

£  Health Care Directive.  Amend your health care directive to remove your spouse or in-laws as agents who would be able to make your health care decisions should you become incapacitated.

£  Keys.  Ask your spouse to return his/her set of keys to your vehicle as well as any keys your spouse may have for your parent’s home or other relatives. 

£  Bills.  If you move out of the house, be sure to have your name removed from any household bills. 

£  Home Security.  Once your spouse has moved out of the home, change the locks, the password to the home security system, the code to the garage door, the code to the voicemail mailbox, the code to the home safe, and hide your spare keys in a different place.

A few things not to do:

£  Home Owners/Renters Insurance.  Even if you move out of the home, be sure to keep your name on any home owners or rental insurance policy to protect your share of the home and/or your belongings that are still in the home.

£  Will.  Do not change your will until after the divorce is final, but get a copy of your current will and start thinking about how you want to change your estate plan.  Make an appointment with an attorney soon after your divorce is final.

£  Utilities.  Do not turn off utilities if your spouse is still living in the house.

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Leaving on a Jet Plane--Children Traveling Internationally With Only One Parent

Traveling internationally with your child can be a wonderful experience.  When only one parent is taking a child on an international trip, there are some a few extra documents you need to have before you leave.  While it can seem cumbersome and frustrating for a parent who is planning an innocent trip, keep in mind that these policies and regulations are in place to protect children from parental abduction. 

Applying For a Passport

The first step is obtaining a passport for your child.  Every person traveling internationally, even an infant, must have a passport.  Information on how to apply for a passport can be found on the U.S. Department of State website  http://travel.state.gov/passport/forms/ds11/ds11_842.html.  In order to obtain a passport for a minor child, both parents must go with their child to apply and sign the DS-11 form in person or must meet one of the following exceptions:

• If both parents consent although only one parent is available to go in person to apply, the applying parent must bring the second parent’s notarized Statement of Consent (Form DS-3053)
• If only one parent is available and the other parent is unable to be located, then Form DS-3053 does allow a parent to explain why he or she was unable to locate the second parent.  When completing the form, provide detailed information to improve your chances of having your application approved.  This includes:
• What attempts have been made to contact the second parent;
• What attempts have been made to contact the family members/friends of the second parent to locate the second parent;
• The last contact and type of contact that was made with the second parent;
• If the other parent was deported and therefore unreachable; and
• If domestic abuse is a factor in why they are unable to locate or contact the other parent for consent (providing documentation is recommended).
• For a parent with sole legal custody, he or she must bring one of the following:
• The minor’s certified U.S. or foreign birth certificate listing only the applying parent’s name;
• Court order granting sole legal custody to the applying parent (make sure the child’s travel isn’t restricted by that order);
• Adoption decree if it lists the applying parent as the sole adoptive parent;
• Court order permitting applying parent to travel with the child;
• Judicial declaration of incompetence of non-applying parent; or
• Death certificate of non-applying parent.

Single Mother, Father’s location unknown

If the single mother is unable to locate the father because his whereabouts are unknown, the mother may petition for custody and obtain a court order stating the language in the Recognition of Parentage and Minn. Stat. § 257.541 regarding the mother having sole custody of the children until custody is determined in a separate proceeding.  Such an order has typically allowed the single mother to apply for the minor’s passport and travel internationally with the child.  It is recommended that you attempt service by mail before filing to demonstrate an effort to notify the other parent.

Second Parent Refuses to Consent

If the consent of the second parent is required, the location of the second parent is known and the second parent will not consent to the international travel with the minor child, the applying parent must make a motion for permission to travel with the child internationally and obtain a passport.  Some relevant factors to consider when bringing or responding to this motion include:

·         Is the destination country a member of the Hague Convention;

·         How effective is the country’s legal system in returning children if they are abducted;

·         How will the parenting time that will be missed be compensated to the second parent;

·         Are the objections raised by the second parent reasonable;

·         Consider the best interests of the child factors as to whether the travel is appropriate;

·         Other risks specific to the destination country;

·         Past/current threats of taking the child permanently to the destination country, or in the alternative lack of threats;

·         Efforts towards relocation by the travelling parent or in the alternative a showing that the travelling parent is settled in the community in the U.S.;

·         Travel history of requesting parent and/or child;

·         Dissatisfaction with life in the U.S.;

·         Whether the travelling parent has documents from immigration; and

·         Compliance with previous court orders.

Documentation Needed at the Time of Travel

At the time of travel, the travelling parent may have to prove custody of the minor child.  It is recommended that the accompanying parent travel with the documents used to obtain a passport.  Where there is an agreement between the parents, the travelling parent should obtain a notarized letter indicating that he or she received consent from the second parent to travel with the minor child internationally.  The letter should contain the dates of departure and arrival as well as the destination.  This letter may be helpful in the event it is requested while travelling.  NOTE:  Some countries, such as Mexico, require the original document.  You may want to have two originals on hand in case one is lost or damaged.  There is no standard form, although there are several samples on the internet.   Finally, parents are encouraged to contact the airline, travel agent prior, or the U.S. Embassy (http://www.usembassy.gov/) in the destination country for any additional travel regulations.

Additional websites that discuss traveling internationally with children

http://travelwithkids.about.com/cs/carplanetips/a/crossborders.htm

http://www.familytravelforum.com/

http://www.travelwithyourkids.com/

http://www.cyberparent.com/trips/border.htm

http://sondur.com/Solo_Parent_Minor.htm

http://www.parenting-weblog.com/50226711/international_travel_with_children.php

Great article on travel health tips for children from the CDC. http://wwwnc.cdc.gov/travel/yellowbook/2010/chapter-7/traveling-with-infants-and-children.aspx

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What happens if we all die together?

Now that you’ve faced the possibility that you may die when your children are young, let’s discuss how you would want your estate handled if your entire family died together.  I know, it’s a horrible thought. During the Estate Planning process you will have to imagine scenarios where all of the people you love and care about die before you in order to determine how their death would affect what you want to have happen to your estate.

I find it helpful to think of these alternate gifts as all the great ways I can use my estate to help the people and causes I care about if I didn’t have to provide for my daughter.  Depending on the size of your estate, you can end up feeling a little bit like Oprah—“YOU get a car and YOU get a car and YOU get a car!”  Or, if your estate is more like mine—“YOU get a bicycle and YOU get a bicycle and YOU get a bicycle!” 

So let your imagination run wild.  Here are some questions to get you thinking:

·         Is there someone you know who could really use a break?  Someone who is always giving of themselves, but could use some financial help?

·         Is there someone who you really believe could do great things in life?  How can you help them achieve their dream?

·         Is there someone who is struggling to pay for an education or a child that you want to see go to college? 

·         Is there a person who helped you get where you are today?  How?  Can you make a gift that would recreate that support for someone else?

·         Were you the recipient of an educational grant or scholarship? 

·         Were you involved in an organization that made a difference in your life?

·         Is there a cause that you believe strongly in?  Is there a person or organization that is doing good work in that area?

·         Would you rather give smaller gifts to many people or larger gifts to one or two?  Do you want to be recognized or give them anonymously?

·         Do you want to create a trust or make a one-time gift?

·         Do you want to put conditions on your gift?

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Choosing a financial guardian

Many people simply name the same person as both personal guardian and property guardian (or Trustee if you have a trust) for their children.  However, you may decide that the person you feel can best raise and nurture your children is not the best choice to manage a large financial portfolio.  Perhaps you want your child’s financial support to be managed conservatively, but the physical guardians are free-spenders. 

When choosing a Trustee, you should select someone whose attitude towards money is similar to yours—or perhaps similar to what you aspire to.  The Trustee should be someone you can trust to follow your instructions and not be tempted to take advantage of their position. 

You can give the Trustee wide latitude as to amount and timing of distributions, or you can create a detailed plan for what, when, and how you want the money distributed.  This is a delicate balance between providing the Trustee the flexibility to provide for your children’s unforeseeable needs and ensuring that your primary goals are met (e.g., paying for college, wedding) before the money is depleted. 

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