Divorce Overview

Lawmoe · Jul 30, 2004, 11:27:55 PM

VISIT ONLINE AT   Http://www.divorceprofessionals.com

INTRODUCTION

When you get married, you never consider that the person you love may later seem like your worst enemy. Yet, with a divorce rate hovering around fifty percent, it looms as a very real possibility. Often, divorce takes a very high toll, both financially and emotionally. No matter how well you prepare, the greatest toll of divorce falls on children. Your understanding of the issues and the form of dispute resolution you choose in your divorce may determine how you survive the process.

I have produced this handbook to provide people engaged in family law disputes with an understanding of the issues and procedures in the family court system. It is also my hope, that the information contained in this handbook will help parties involved in these disputes to insulate their children from the process and to learn to craft their own solutions before litigating their issues in a Courtroom.

The information in this handbook was derived from years of family law practice and is based generally upon existing family law statutes and case law. It is not intended to provide state specific legal information regarding your case or to replace the advice of an experienced family law attorney.

For additional information, bulletin boards, forms and laws and other family law resources for men and women, you may wish to visit our web site at http://www.divorceprofessionals.com.

DIVORCE - A FIFTY PERCENT PROPOSITION

Nobody marries with the expectation of failure. Married couples never contemplate that the person they once loved could later seem to be a stranger and perhaps even an enemy. Yet, statistics paint an ugly picture. Today, almost five out of every 10 marriages ends in divorce. Some studies place that figure even higher. Even more alarming are statistics that indicate that as many as "95 percent of all divorced people eventually remarry . . . 76 percent of second marriages fail within five years . . . .87 per cent of third marriages fail and 93 per cent of fourth marriages end in divorce within five years."
SOURCE: Http://answers.google.com/answers/threadview?id=363986

In divorce proceedings, women lose financially. Their standard of living may drop as much as thirty percent in the first year following a divorce. Men, may not suffer as great financially, however, they tend to lose parenting rights and precious time with their children.
There are several simple and logical ways to protect yourself financially if you believe your marriage is in jeopardy:

ONE: Keep Non-Marital Assets Separate.
Non-marital assets are not part of the assets divided in a divorce. Instead, they are considered the asset of either the husband or the wife and generally awarded to that person in a divorce proceeding.
*   Categories of non-marital assets include: property you inherit;
*   proceeds from personal injury awards (ie. Worker's compensation or accident proceeds);
*   items owned prior to marriage; and
*   gifts to one party rather than the family.

If non-marital assets are commingled with assets purchased or improved during the marriage, it may not be possible to claim the asset as yours in the event of divorce. However, some "tracing" of non-marital assets may be possible. For example, if a non-marital asset is sold during the marriage and the proceeds from the sale are used to purchase another asset, it may be possible to "trace" a non-marital interest in the new asset. For example, if a car owned before a marriage is sold during the marriage and the proceeds used to purchase a new vehicle, a party may be able to claim a non-marital interest in the new vehicle. To do so, it is very important to retain all documents demonstrating the sale of the asset and the use of the proceeds realized from the sale.

TWO: Establish Your Own Credit.

Make sure your name is listed on all household accounts and investments. Establish at least one credit card in your own name. This will help to create an individual credit history. When you are on your own, you will have a better chance qualifying for loans, mortgages and credit cards. These are all important considerations after a divorce.

THREE: Review Your Financial Holdings Regularly.

Maintain complete and separate records of your financial holdings such as bank accounts, IRA's, 401K, land purchases, and stocks. This includes assets in your spouse's name as well. You may wish to maintain copies of these records at your place of employment or in a safety deposit box in your name. Records have a way of disappearing after a divorce has been started. Records should include all bank accounts, investments, retirement records, stocks, bonds, automobile titles, tax returns, pay stubs, credit card statements, life insurance policies, health insurance benefits, real estate documents, and collectible records.

FOUR: Photograph Property.

Use a camera or video recorder to record the contents of your home and the major assets included on the property. This includes tools in the garage, appliances, artwork collectibles and any asset of value. After a divorce has been commenced assets often are taken from the property or hidden away. Having a clear and accurate record can be extremely important.

FIVE : Time Your Divorce.

The timing of your divorce may carry with it a significant financial impact. For example, in a single income family, the non-working spouse may not have earned enough money to qualify for Social Security at the age of retirement. However, if spouses are married at least 10 years and don't remarry, the non-earning spouse may qualify for Social Security benefits based on the ex-spouse's earnings when both reach the age of 62.

SIX: Close Joint Accounts.

If a divorce is imminent, you should immediately contact joint-credit-card companies in writing to freeze or cancel your joint accounts. You do not want to be responsible for your spouses' new credit card charges, particularly when those charges may include attorney's fees. This protects your credit. It is important to remember that, although a creditor may freeze a joint account, the outstanding balance must be paid off before the account can be closed. You may also wish to close your joint bank accounts. If any proceeds are removed, keep a carefully accounting where the money is placed or how the proceeds are spent. You will undoubtedly be asked for that accounting as part of the divorce process. You can save yourself time and money by keeping accurate records.

SEVEN: Hire an Experienced Divorce Lawyer.

To ensure that you receive your important mail and messages, open a post office box that you can use for your mail before you separate. This can be important if you and your spouse are continuing to share the same residence.

EIGHT: Seek Emotional Support.

Divorce is most often an emotionally charged, frightening and draining experience. As a result, you will need to rely on your family and social support mechanisms to aid you in your journey through the divorce process. Instead, divorcing parties often take the opposite approach. Perhaps for reasons of sadness or shame, they isolate themselves from their important networks. This isolation can often result in what I refer to as the "Ostrich Syndrome." They stick their head in the sand and avoid addressing important divorce issues like a debtor ignoring mounting bills on a kitchen table. Too often, when these people realize their error, it is too late. They have irreparable harmed their case, lost property issues for lack of preparation, or acquiesced in inequitable financial support settlements. Your social resources are important. They should be there to pick you up emotionally. They are not there, however, to provide you legal advice. It is important to leave that to the experts that you will rely on in your divorce.

NINE: Put Aside Finances.

It is important to save money to hire an attorney before the divorce is actually filed. In some sense, you are building a war chest in order to maintain your defense. Even if you are able to resolve your case by agreement in the short run, you should always be prepared for the worst. All too often, one party may lose out in the divorce when they are no longer able to financially keep up the fight. Many of these parties wind up "pro se" (without an attorney) attempting to navigate the rough waters of divorce on their own. I compare this to asking someone who speaks no Latin to translate the language. The divorce process is the same way. It has its own customs, language and processes. If you are not trained to speak the language like a lawyer, you are likely to struggle greatly.

TEN: Hire an Experienced Divorce Lawyer.

It may be very important to hire a good lawyer early in your divorce planning process. An experienced attorney can help you avoid mistakes that could later cost you in your divorce proceeding. There are many lawyers to choose from so it is important that you ask important questions in order to choose one that understands the issues and that shares your philosophy.

FINDING LAWYERS TO INTERVIEW

Divorce can be an intimidating process for the uninitiated. In law, there is no area that generates as much paper work or requires the filing of more forms. As a result, the process can be confusing, time consuming, and often, very costly financially and emotionally. As a result, choosing a lawyer may be the most important decision you make.

A good lawyer will:

*   help you to understand and focus on the issues of your divorce without losing sight of the emotional nature of the proceedings;
*   help you to prepare for court proceedings in advance;
*   provide prompt and courteous responses to your questions;
*   provide information and methods to help you reduce your legal fees.

To choose an attorney you should find a number of candidates to interview. The best way to find a good lawyer is to ask for a recommendation from someone you know and trust. However, don't just get names form you friends. Instead, ask them detailed questions regarding the specific strengths and weaknesses of the attorneys they recommend. Remember, not every lawyer is right for every client and your friend's lawyer may not be right for you. If you still need more prospects, you may locate a lawyer through your local bar association's attorney referral service or through an internet listing service.

There are also numerous attorney referral services on the internet:

*    Divorce Net at http://www.divorcenet.com
*   Divorce Source at http://www.divorcesource.com
*   Divorce Headquarters at http://www.divorcehq.com
*   Divorce Interactive http://www.divorceinteractive.com
*   Martindale Hubbell at http://www.lawyers.com
*   West Publishing at http://www.lawoffice.com
*   Find Law at http://firms.findlaw.com/firms/
*   Law Info at http://www.lawinfo.com
*   Lawyer Shop at http://lawyershop.com
*   Attorney Pages at http://www.attorneypages.com
*   The Lawyer Source at http://www.thelawyersource.com
*   Law Chek at http://www.lawsonline.com
*   Law Guru at http://www.lawguru.com
*   Laws Online at http://www.lawsonline.com

Finding lawyers is only the first step. A referral service simply compiles a listing of attorneys in your geographic without screening the attorneys listed for reputation or experience. You must still interview your attorney to determine whether he or she is qualified and whether his or her philosophy fits with your own.

INTERVIEWING CANDIDATES

It is important to remember that not every lawyer is appropriate for every client. It is important that your philosophy matches that of your attorney. Nothing is worse than feeling like your interests are not being represented or that you are being bullied into a settlement. The lawyer is there to provide you with advice on the legal issues and to plan strategies regarding the presentation of the case. However, the ultimate decisions regarding the legal issues are yours alone.

Remember, it is your case!

Most lawyers will offer a free initial consultation. You should speak with the lawyers that you intend to interview in advance regarding any costs associated with your first meeting. Meeting with a lawyer may seem intimidating. To ensure that you are prepared, you may wish to make out a list of questions or points that you would like to raise in the interview. Additionally, If you have already been served legal papers, bring them to the interview along with any correspondence or other relevant documents. This will allow the lawyer to assess the potential issues in your case.
Some questions you may wish to ask include the following:

*   How long have you been a lawyer;
*   What is your primary area of practice;
*   Do you have any other practice areas;
*   What percentage of your caseload is dedicated to divorce;
*   Have you handled cases with issues similar to mine;
*   Do you have a heavy caseload and do you have time for my case;
*   Have you handled many divorce cases in my county;
*   What is the divorce process in my county;
*   What are the likely obstacles and issues in my case;
*   What are my alternatives in resolving the issues;
*   Is there any process you would recommend and why;
*   Approximately how long will the process take;
*   What are your rates and how often will you bill me;
*   What are the costs I can expect in this case;
*   What are the legal fees I can expect in this case;
*   Will the lawyer accept payments on any outstanding balance;
*   How will you keep me informed of the progress in my case;
*   What kind of approach do think is appropriate and why -aggressive and unyielding, or cooperative.
*   Who else in the office will be working on my case and what is their rate;
*   Is there anything I can do to keep my legal fees down.

SELECTING YOUR LAWYER

When interviewing lawyers, you should listen carefully to the answers provided. However, equally important to assess the lawyer's personality. How does he or she make you feel? Confident? Frightened? Is the lawyer willing to spend time with you and provide answers at the initial meeting in a friendly manner? How you feel about your lawyer may affect your ability to communicate effectively with that person over emotional and highly personal matters. After each interview, assess the strengths and weaknesses of the candidate. Did the lawyer listen to you? Did the lawyer provide enough information to make you feel comfortable that he or she knew the law and procedure in your state and county? Did you feel confident?

ESTABLISHING A WORKING RELATIONSHIP

After you choose your lawyer, it is important to establish ground rules and philosophies to ensure that your are on the same wave length as your lawyer. What do you expect from your lawyer? What dies your lawyer expect from you?

It is important to discuss your specific objectives and the issues that are important to you. Together you may then plot a course to resolve those issues. You should also discuss avenues of communication. One complaint that is heard most often is that "my attorney did not return my call." Discuss the possible ways for you to communicate with your lawyer, including telephone, fax and/or e-mail.

If you have difficulty reaching your attorney, it is because the attorney is not available or has a court conflict. In such instances you should contact his secretary or legal assistant to schedule a telephone conference on the attorney's calendar. By scheduling the conference, you are assured of reaching your attorney at the designated time.

Be honest with your lawyer. Do not hold back relevant information even if it seems embarrassing. Your lawyer cannot protect your interests with only half of the facts. There is nothing worse than being surprised at trial by unexpected information.

Finally, if you have any questions about billing, raise them as soon as you receive a copy of your bill.

It is very important that you understand your legal fees and your lawyer=s billing procedure. You should talk specifically about those costs during your initial conference.

HOW MUCH WILL THE DIVORCE COST

It is difficult to determine how much a divorce will cost. However, after reviewing the likely issues, your method for resolving those issues, and hearing your philosophy of the case, a lawyer may be able to give you a range of expected expenses. Controlling the expenses in a divorce, however, is no easy task. Many of the factors contributing to legal costs are outside of your lawyer's control. The personality and philosophy of the your spouse=s attorney can affect the ultimate path that your divorce takes. Additionally, the ability of the parties to cooperate and communicate may also have a significant impact.

WRITTEN RETAINER AGREEMENTS

Your attorney is required to provide you with a written retainer agreement identifying the costs and hourly fees that will apply to your case. It is important that you read this document carefully and ask questions regarding any unclear issues. Signing a retainer agreement does not mean that you cannot fire your lawyer or that your lawyer cannot withdraw from the case. You may change lawyers at any time. The retainer agreement, however, will memorialize the terms of your billing relationship with the attorney. Once you have signed the retainer agreement, it is a legally binding and enforceable contract. Always keep a copy of your retainer agreement for later reference.

FLAT FEES

Fees charged by lawyers can vary from state to state and county to county. You may find a lawyer who charges a fixed flat fee for motions after a divorce or for uncontested proceedings where the parties have reached an agreement. In such instances, the amount of work which must be performed by the lawyer can be easily determined. This is a favorable payment method since you will know at the outset the total cost of the proceeding which will allow you to budget accordingly.

HOURLY FEES

In most contested cases, you will find that lawyers will bill out their time at an hourly rate. Although rates vary, you may expect your lawyer to bill out services at an hourly rate between $125 and $350 per hour. Reduced hourly rates may apply to services that are performed by associate attorneys, paralegals, law clerks or legal assistants in your attorney=s office. Hourly rates are influenced by your attorney=s legal experience, reputation and the demand for his/her services.

MINIMUM FEES

Lawyers may also charge minimum fees for specific services that are billed out as part of the divorce proceeding. For example, drafting a Motion or a Petitioner may be billed out at a flat rate of $200. You should discuss with your lawyer any minimum fees that may be applicable to your case.

MINIMUM BILLING INCREMENTS

Your lawyer may also bill out services based on a minimum billing increment. For example, your lawyer may bill out his or her time in twelve minute increments or two tenths of an hour. That means for any service no matter how short, the lawyers time is rounded up to the nearest twelve minute increment.

COSTS

In addition to your legal fees, you may be required to pay any costs that are incurred by your lawyer that are associated with your case. Costs may included charges for any filing fees, copies, mileage, faxing, service of papers, postage and parking. It is important for you to review and understand the costs that you are likely to incur.

EXPERTS

You may also be required to cover any costs related to necessary experts. Experts may be used to provide medical testimony or appraisals of real estate, business assets or personal property. Independent custody evaluators may be hired to perform a custody study or vocational experts may be necessary to determine what financial support is necessary. The need for experts depends greatly on the issues of your case. You should consult with your lawyer regarding the potential need for experts in your case and an estimate of the costs.

RETAINERS

Your attorney may request a "retainer fee." This is an advance payment against which any hourly fees and/or costs are assessed. The retainer is a form of security deposit to ensure payment of future legal fees.

PAYMENT ARRANGEMENTS

Most lawyers will require you to remain current on your legal fees. The reason for this, is that each month the lawyer must pay offices expenses related to rent, payroll, advertising and other overhead. Some attorneys may even require a new retainer when the original retainer is exhausted. If you are unable to remain current, you do have options that can be discussed with your lawyer.

Security for Fees

You may secure your legal fees by providing a lien against a marital or non-marital asset. Be sure to review any agreements related to security interests carefully. Moreover, if a security interests relates to real estate, it is necessary for your attorney to inform you that you have the right to have the agreement reviewed by separate counsel.

Wage Assignment

You may also suggest to your attorney a wage assignment which ensures a consistent monthly payment toward your legal fees.

Credit Cards

Most law offices will accept credit card payments.

LOW COST LEGAL SERVICES

If you cannot afford the legal fees charged by your lawyer, you may ask for the names of other lawyers of agencies that may provide services on a sliding fee scale or at a lower rate. Often there are non-profit legal aid agencies in your area that will accept income qualified applicants at reduced or no fee.

ORGANIZATION AND REDUCING LEGAL FEES

Simply by being organized and remaining actively involved in your case you may significantly reduce your legal fees. Your lawyer will provide you with a number of documents received during the proceeding. This may include correspondence, court notices or other legal documents. Not every document you receive will require you to respond. Additionally, you may not understand every document you receive. However, it is very important to review each piece of information and to contact your lawyer with any questions.

A. Keeping A File At Home.

To facilitate communication with your lawyer, it is important that you maintain a complete file at your residence. You may wish to use an expandable file pocket with individual folders for different types of documents. The initial folders you should have would include a correspondence folder for letters and memos; a "Pleadings" folder for any legal documents (these documents usually include a court caption). Maintaining a separate and organized file at your residence will allow you to review documents with your attorney by telephone saving you're the time and expense of an in office appointment.

B. Organizing Documents and Filling Out Requested Forms.

Even more important, during your legal proceeding you may be asked to provide documents, answer interrogatory questions or complete other court related forms. In providing the necessary information it is important that you understand what information is being requested and to follow your lawyers instructions to the letter in completing any forms. Do not hold back information. Assume that any information requested is necessary unless you are informed otherwise by your lawyer. If you provide disorganized or incomplete information, your attorney may spend a number of hours sorting through paperwork at an hourly rate. This can be avoided.

C. Compiling Questions

You should also keep a notebook of any issues and questions that you have for your attorney noting the date of your question or issue in your notebook. When you have a sufficient number of issues or questions, you should contact your attorney for answers. By waiting until you have a number of questions at one time, you may significantly reduce your legal fees. You should contact your attorney immediately in the event of any emergency. However, you should ask yourself, "Is this an emergency? And what can my lawyer do about it?" For example, a child is returned twenty minutes late from visitation is an unlikely emergency. Moreover, there is very little immediate impact your lawyer can have after the fact. Write down the information and provide to your lawyer at a convenient time.

D. Do Not Use Your Lawyer as a Therapist

Your lawyer is not a therapist and should not be used to unload your emotional issues. Though most lawyers, are trained to listen and lend a sympathetic ear, they are also on the clock and billing you for their time. You are far better off to find a professional therapist to help you through issues of separation, anger and resentment. They will help you to resolve those issue and may provide that help under an insurance policy or on a sliding fee scale.

E. Focus on the Legal Issues

Listen to your lawyer and focus on the legal issues of your case. All too often, divorce costs are driven up by emotional issues that do not relate to the legal issues. This can have a costly impact particularly when you spend hundreds of dollars on attorney's fees seeking items that are far less valuable and can be replaced. There are many examples where hundreds and even thousands of dollars have been spent to argue about couches, chairs, frying pans, dogs and cats. These items are replaceable. In property disputes, ask yourself "Do I really want this item, or am I simply asking for it because it will hurt my spouse. " Use the divorce process to "get out not to get even."

F. Don't Try to Cheat

Hiding assets and delaying the proceedings may result in higher legal fees. A Court has the ability to require you to pay your spouse=s legal costs if it believes that you have contributed unreasonably to the length and delay of the proceedings.

CHOOSING A DIVORCE PROCESS

Most people do not understand that they control their divorce process. They alone can choose how they will resolve their issues. In that context, there are hundreds of conflict resolution procedures or combinations of those procedures. In some cultures that may include community intervention and mediation. Not all divorces must spend a lengthy amount of time in the court system.

Obviously, the Cost of a divorce proceeding may depend on the process you choose. The more that you can accomplish on your own with your spouse, the lower the costs related to legal fees and other proceedings. Although the ways to resolve divorce issues are diverse and varied, I like to set out the more common divorce processes in levels, with the lowest level potentially being the least expensive and least contested. However, none of these levels operates in a vacuum, you may be mediating while your divorce progresses through court for example.

LEVEL ONE: DISCUSS ISSUES DIRECTLY.

To reduce legal expenses it may be possible to discuss the divorce issues with your spouse. Even if you cannot agree on all issues, you may resolve some. For example, property issues are generally easier issues to address. Any asset that is acquired during the marriage is marital. Any asset that is owned before marriage, inherited or gifted to one party may be non-marital. If you and your spouse can meet to define what assets you have, that is 25% of the battle. If you can then agree on what assets are marital or non-marital, you are half way there. If you can then agree on the value of the assets, you are 75% of the way toward resolving your property issues. The final step is determining the division, who gets what. In a divorce, your attorneys will go through these very same steps in a process called discovery. If you can make some progress before hiring a lawyer, you may save some costs. Obviously, the parenting issues and support issues are a bit more emotional and often difficult.

LEVEL TWO: MEDIATION.

If you are unable to speak with your spouse one on one because of acrimony and anger, or if your spouse has a much stronger personality than you, you may wish to try a mediator. A mediator is an independent neutral. The mediator does not give legal advice, but will try to keep the settlement negotiations controlled and civil and may even suggest documents that you may acquire or steps you may take to resolve your issues.

LEVEL THREE: COLLABORATIVE LAW.

Collaborative Law is a new way to resolve disputes by removing the disputed matter from the litigious court room setting and treating the process as a way to "trouble shoot and problem solve" rather than to fight and win. It does not exist in any laws or drafted Court procedures. In fact, it was a creation of attorneys who believed that the Court system creates adversaries and promotes fighting. As part of the Collaborative Law method, both parties retain separate attorneys whose job it is to help them settle the dispute. The process is carried out with a series of meetings with all parties present. Documents and information are freely exchanged without the formalities associated with the Court process. This generally saves money. Where the Court system would most likely not have the parties meet to discuss their issues for many months, if at all, Collaborative Law expedites the process with a meeting at the very beginning. This gets the matter off to a flying start without having to wait based on Court schedules. In fact, part of the Collaborative Law agreement is that neither party may go to court. If that should occur, the Collaborative Law process terminates and both attorneys are disqualified from any further involvement in the case.

LEVEL FOUR: COURT PROCEEDINGS.

A divorce action may be commenced by serving the other party with and filing a Summons and Petition. These documents notify the court of the divorce and start the court time lines. Each county has a slightly different process. In most counties where the parties disagree on custody or parenting schedules, the Court requires mediation (except in cases where domestic abuse has occurred). Additionally, if children are involved, both parents must attend a co-parenting class and often children over the age of 5 must attend a class on how to deal with parents involved in a divorce. As a general rule, Court time lines are very slow. A party may schedule a temporary hearing to determine what happens until the divorce is final. On a temporary basis the court will determine who resides in the house, who pays what bills, who has temporary custody, child support and maintenance issues. In most counties, if the parties do not resolve their issues and the matter proceeds to trial, that trial date will not occur for a year or more.

DOCUMENTS YOUR LAWYER WILL NEED

As part of the legal process, you will be required to provide documents related to the family finances including income, debts, assets and valuations. Your attorney is best able to represent you when the documents are provided in a complete and organized fashion. A complete document file can be instrumental to negotiating and resolving divorce issues without litigation. Even more significantly, however, if settlement is not possible, your documents may be absolutely necessary to support your case at trial.

Once again, organization may help to reduce your legal fees. I would suggest organizing the documents by the categories set out below. You may wish to include a cover sheet with each category listing each document that you have included.

INCOME INFORMATION

1.   Your paycheck stubs from all sources of employment over the last year. At a minimum, try to provide paycheck stubs for the last three months.

2.   If you can get them, your spouse's paycheck stubs for the same period of time. Those check stubs will often show year top date earnings and deductions.

3.    If either you or your spouse is self-employed, any and all business documents demonstrating payments received or charges billed are necessary. This includes - (a) job bids (b) invoices for work performed (c) ledgers of payments received (d) Bank deposit slips (e) bank statements (f) independent contractor agreements (g) contracts agreements

4.   If either you or your spouse is self-employed, documentation regarding business expenses is necessary. These may include check registers, canceled checks, payment receipts, check carbons, computerized income or expense records, financial statements, profit and loss statements, general ledgers.

5.   At a minimum, copies of your joint or individual tax returns, both state and federal, for the past three years.

6.   Copies of any business tax returns for any business in which you or your spouse hold an interest for the past three years.

7.   If either party works for cash, necessary documentation may include:
*   Check ledgers demonstrating expenses paid during marriage (a person working for cash will often have check registers that do not show payments for necessities of life such as groceries - the explanation for that omission is often cash payments)
*   Any receipts for cash payments.

8.   A copy of any financial statements or statements of net worth prepared by you or your spouse for the purpose of securing bank loans or for any other purpose.

9.   Any other information that will help you establish your net worth, your spouse's net worth, your joint net worth, your income, and your spouse's income.

REAL ESTATE INFORMATION

10.   Deeds, abstracts, and Torrens certificates showing the legal description of your homestead and any other real estate. Secure these from your mortgage company or lending institution if you do not have them.

11.   Current mortgage statements on the first mortgage, second mortgage and/or home equity loans on the homestead and any other real estate.

12.   All papers and documents covering the initial purchase of the homestead including the purchase agreement.

13.   Any and all documents refinancing the loans on any parcel of real estate owned during the marriage (those refinancing documents are likely to include and appraisal of the property and a statement regarding income of the parties).

14.   Tax assessor's statements on the homestead and other real properties.

SAVINGS AND CHECKING ACCOUNTS

15.   Savings passbooks and savings certificates of individual or joint accounts held individually or jointly by you and your spouse.

16.   Any and all bank statements for the past year from any account in your name or held jointly with your spouse.

17.   If possible, list of corporate stocks or stock certificates owned by you and your spouse individually or jointly.

LIFE INSURANCE

18.   Any current life insurance policies on your life, your spouse=s life or on your children whether it is an individual policy or a policy through your employer. To be complete you should provide any and all statements you have regarding that life insurance policy including any documents indicating a cash balance or loans against them.

DEBTS

19.   An itemized list of all debts in either your name or the name of your spouse, with the attached invoices or statements for each. You should include any outstanding unsecured bills including credit cards, accounts payable, student loans and/or medical bills. The documents provided should include the statements at the time of your separation as well as the current balance.

DEFERRED COMPENSATION PLANS

20.   A copy of the most recent statements for any:
(A) pension;
(B) retirement,
(C) profit sharing/401 K plan
(D) Mutual funds
(E) IRAs

AUTOMOBILES

21.   Title or registration cards to all automobiles/boats/ATV=s/snowmobiles or other motor vehicles owned by you or your spouse individually or jointly.

22.   Any documents demonstrating the current outstanding secured debt on the automobiles/boats/snowmobiles/ATV=s including payment coupons, amortization schedules or monthly invoices

EMPLOYMENT

23.   Any job descriptions that may exist.

24.   A current resume for you and your spouse.

25.   Any benefits information related to you or your spouse=s employment including health insurance information

CUSTODY

26.   Report Cards for the children.
27.   Medical Records for the children.
28.   Daycare records for the children.
29.   Any homework assignments that you have signed or approved.

NECESSARY MONTHLY EXPENSES

30.   You should provide your lawyer with a list of necessary monthly expenses. You should be prepared to support your list with documentation that the expenses listed are accurate. It can be devastating to your case financially, if you embellish your monthly expenses to the point that they are unbelievable and unsupportable. A chart for itemizing your monthly expenses is included on the next page.
   ESTIMATED MONTHLY LIVING EXPENSES/BUDGET

   Children   Client -
FOOD/BEVERAGE
Groceries
Restaurant
HOUSING
Mortgage or Rent
Real Estate Tax
Insurance (home owners or renters)
Maintenance/Repairs
Second Mortgage
Home Equity Loan
UTILITIES
Electricity
Gas
Sewer & Water
Telephone
Telephone - Long Distance
Waste Disposal
Water Softener
Cable TV
FURNISHINGS/OPERATION
Services/Cleaning
Supplies
Furnishings/Equipment -
Lawn Service
Snow Removal
APPAREL/UPKEEP
Clothes/Shoes
Laundry/Dry Cleaning
Upkeep
GROOMING
Haircuts
Sundries
EDUCATION
Tuition
Transportation
Special Activities
Lunch Money
Tutoring
Books/Supplies
TRANSPORTATION
Auto Installment Payment
Auto Insurance
Maintenance/Repairs
Gasoline
License
Parking
Public Transportation
Replacement Reserve
CHILD CARE
Transportation
Baby Sitter
Day Care Center
Allowance
Camp
Lessons
Diaper Service
MEDICAL CARE
Doctor
Dentist
Orthodontist
Eyeglasses/Contact Lenses
Medicine/Drugs
Therapy
INSURANCE NOT DEDUCTED BY EMPLOYER
Life
Health
Personal Property
Personal Umbrella
MISCELLANEOUS
Child Support
Maintenance/Alimony
Income Taxes
Entertainment
Hobbies
Vacation
Gifts
Memberships
Subscriptions
Donations
Pets
Costs of Employment
Savings
Retirement
Postage
Bank Charges
OTHER
OTHER
OTHER
OTHER
OTHER
OTHER


UPCOMING SPECIAL EXPENSES: (not included above)
TOTAL:

TIPS TO ASSIST/TRAPS TO AVOID

During divorce proceedings, emotions run high. You may feel angry or betrayed. You may want to take immediate action. However, there are a number of pitfalls that you must avoid and tips to help you prepare your case.

RECORDED STATEMENTS.

In a contested divorce always assume that any statement you make is recorded. This includes telephone calls and answering machine messages. Do not say or do anything that you would not want a court to know about. In Minnesota it is legal to record any conversation that you are involved in. Such recordings are admissible in Court. However, it is a felony to record a conversation in which you are not involved. An example would be placing a recording device on a telephone to capture conversations between your spouse and another individual.

SPEAKING WITH OPPOSING COUNSEL.

Once you are represented by an attorney, opposing attorneys may not speak with you regarding the case. If they call you refer them to your attorney. Do not call them even if your lawyer is unavailable and you consider it an emergency.

SPEAKING WITH JUDGES.

Parties may not speak with or provide letters to a Judge unless it is part of a scheduled hearing. Contact without the other party present is called ex-parte contact and is prohibited.

PARENTING NOTEBOOKS.

In a custody proceeding it is important to maintain a notebook including dates that events occur relating to the care of your child(ren). What is the daily routine? Who takes them to the doctor? Who takes them to school activities? List any concerns regarding the other party=s parenting including the method of discipline, drug use, alcohol use, disabilities or neglect.

INDEPENDENT DOCUMENTATION.

In a custody proceeding courts are often faced with conflicting "he said" and "she said" testimony. It is very important to find independent documentation to verify any statements. For example, if you contend that you are the primary caretaker, reports from doctors, daycare provider or teachers may document your attendance at parent-teacher conferences, signing off on homework or taking the child to the doctor. It is very important that you acquire this documentation when possible. If domestic abuse is an issue, you may wish to document incidents with police calls to the homestead, police reports or orders related to domestic abuse. If drug or alcohol use is an issue, a driving record showing DWI arrests or drug charges may prove invaluable. This may also apply to any individuals that have frequent contact with the children. If they are a danger to the children, it is relevant.

INVOLVEMENT OF CHILDREN.
Avoid involving minor children in the proceeding. It is not appropriate to show your child court documents. This may harm the child emotionally and damage your case. Also, you should avoid blaming or vilifying the other parent in the child=s presence. Remind the child that the divorce is not their fault and is a parental dispute. Tell your child (no matter how you truly feel) that both parents love them.

PHOTOGRAPH PROPERTY.

To prepare for divorce, in addition to acquiring necessary documentation, you may wish to photograph or videotape your furnishings, personal property and real estate. By photographing the contents of your home, you will create a comprehensive log of your possessions and the condition of your home. It may be difficult at a later date to recall all items or necessary repairs.

DON'T LOSE YOUR TEMPER.

One of the most abused processes is the ORDER FOR PROTECTION or ABUSE RESTRAINING ORDER alleging domestic abuse. Do not get caught in this trap. It makes any custody battle very difficult since there is a presumption under Minnesota law that an abuser should not have custody. Do not yell, grab, hit, or throw anything in the presence of your spouse or, even more significantly, in the child(ren)'s presence. If your spouse tries to incite you, walk away. Something as simple as blocking someone's egress from a room may be considered abusive.

DIVORCE, LEGAL SEPARATION AND ANULLMENT

Divorce is often called a "Dissolution of Marriage" because it dissolves the Marital Contract. The only difference between a divorce and a legal separation is that a decree of legal separation does not terminate the marital status of the parties.

A decree of legal separation may be granted when the court finds that one or both parties need a legal separation. The same issues that are addressed in a divorce may be addressed as part of a legal separation including custody, child support, spousal maintenance, property division, debt division and payment of attorney's fees.

Annulment is the process by which a Court states that a marriage never legally existed. An annulment is a nullification of a marriage. In our modern world, an annulment tends to be more a creature of religion than of law. In the Catholic religion, for example, a person must obtain a religious (not a legal) annulment before they can remarry again in the Catholic faith. This annulment proceeding operates outside of the law and is recognized only by the Catholic Church.

Legal annulments are rarely granted and when they are, very specific circumstances must exist. Often people believe that they may annul a marriage simply because it was of a very short duration. That is not the case. In most cases an annulment may be granted if the intent to enter into a civil contract was not present at the time that the parties married. For example, an annulment may be granted if, at the time the marriage occurred, one party suffered from mental illness, married based on fraud (eg immigration purposes), was forced consent, was physical incapacity to consummate the marriage, or lacked consent to an underage marriage or bigamy occurred. Regardless o an annulment, children of that annulled marriage are considered legitimate. As a result, evening annulment cases, the court may award custody of children of the marriage and require payment of child support and support of a party.

WAITING PERIODS

There are a number of States that have waiting periods that apply before a divorce can be filed, before a divorce can be finalized or before a party can remarry after divorce. These periods are often called a cooling off periods. They are designed to dissuade parties from divorce and promote reconciliation. These waiting periods vary broadly in their application in each state.

For example, in the State of Maryland, the parties must live apart without any cohabitation for a period of one year before their divorce can be filed. In New Hampsire, state statutes establish a 6-month waiting period before divorce for families with children. Unlike many waiting periods, the period is begun by filing a declaration of intent to separate. It does not require the parties to stay separate, or that they have already filed for divorce. By contrast, in Wisconsin, the parties cannot finalize their divorce before 120 days has elapsed after they have filed for divorce. Additionally, any person divorced in Wisconsin must wait one year before they can remarry. Any marriage before that time would be consider void.

An excellent summary of state laws related to divorce waiting periods and waiting periods for remarriage can be found online at Government Social Security Site: http://policy.ssa.gov/poms.nsf/lnx/0200305165

These time periods may be shortened in some states if the divorce is a "fault" based proceeding.

NO FAULT DIVORCE

Most states have some form of Ano fault@ divorce system. In the not so distant past, divorces could only be granted for specified reasons such as infidelity or abandonment. This resulted in much highly emotional litigation that pitted one spouse against another with each painting the other as the "bad guy." As a result, most states, in order to minimize the impact of divorce on children and reduce costs associated with proving fault, have adopted "No Fault" statutes which generally requires only that one party believes that there has been an irretrievable breakdown of the marriage.

FAULT BASED DIVORCE

There are a few states that have also retained divorce processes based on fault. In states with fault based divorce, ground may include (1) adultery; (2) abandonment for one year; (3) imprisonment for certain period of time; (4) cruel and inhuman treatment; or (5) Drug/alcohol addiction. Proving fault may allow the parties to finalize their divorce at an earlier date without a cooling off period that is required by many state statutes. For the most part, fault does not affect any other issues. In other words, one party will not be awarded more property because the other party had an affair. By the same token, one party will not receive spousal support because the other party abandoned them.

JURISDICTION

To file for a divorce in any state, a party must meet the jurisdictional requirements spelled out in that State's statutes. In many states it is required that one party must have lived in the state for 180 days to one year and there must be no other divorce proceedings pending in other jurisdictions.

WHAT IF I DON'T WANT THE DIVORCE?

You may ask your spouse to attend counseling. However, you cannot force that person to attend counseling or to cooperate. If your spouse refuses, the divorce will move forward. In most counties, a Judge will grant a divorce if one party believes that an irretrievable breakdown of the marriage exists.

Once a divorce has been filed, it is important to promptly address the issues. Delay and foot dragging may impair your rights and result in an order requiring you to pay your spouse's attorney's fees if the Court finds that you have unreasonably contributed to the length and delay of the proceedings.

WHERE DO I FILE?

A proceeding for dissolution or legal separation may be brought by either or both spouses and is commenced by personal service of the summons and petition venued in the county where either spouse resides. "Residence" means the place where a party has established a permanent home from which the party has no present intention of moving.

SHOULD I FILE FIRST?

There is very little advantage to filing first.
One possible advantage is the ability to choose the county in which the case is filed. Another possible advantage is to allow the party filing to prepare in advance for the divorce proceeding. Where the parties have established two separate residences there may be two potential jurisdictions. Your attorney may have insight into the subtle biases of each county and the different processes used allowing him./her to choose a the more favorable forum.

CUSTODY OVERVIEW.

There are two types of custody, "legal" and "physical." Do not confuse these terms. They have two very different meanings and different effects.

Legal Custody

Legal Custody is the right to make decisions related to your minor children. Major decisions include

*   Education: Where do you children attend school? Should they attend special classes or tutoring?
*   Health care: What types of medical treatments should your child have? Who should be the doctor?
*   Religion: What church, mosque or temple should your child attend? What religious education should your child attend? Should your child be baptized? If so, in what religion?

There is a strong presumption under Minnesota law that "legal custody" should be shared by the parents. The only time that legal custody is not shared is when the parents are unable to communicate and do not have any reasonable methods for resolving disputes. Often when parents have conflicting beliefs regarding legal custody issues, the Court may decide the one conflicting issue while still awarding parents joint legal custody on other issues. For example, the Court may determine a conflict regarding religion but still award joint legal custody regarding non-conflicting issues.

It is important to remember that an award of joint "legal custody" is not a basis for a downward departure in child support.

Physical Custody

Physical Custody is what most people think of when the term "custody" is mentioned. It may be referred to in different terms in different states. For example, Wisconsin refers to "physical custody" as "physical placement" or "primary physical residence."

Physical custody refers to the primary physical residence of the child. The presumption under law varies from state to state. In many states, there is a presumption that where the parent's cannot agree on physical custody, custody should be awarded to one parent or another to provide stability and prevent conflict. In more recent years, there has been a trend toward establishing statutes that presume that the parties should share physical custody. In 2003, the presumption for joint physical custody existed in only 20 states plus the District of Columbia. Some excellent references to psychological studies related to sole or joint physical custody exist at http://www.wiskit.com/marilyn/custody.html

Whatever the standard that is applied, it is common that the presumption can be rebutted by demonstrating that a different custodial relationship is in the best interests of the child.

To determine what is in a child=s best interests, a Court is required to look at the totality of circumstances surrounding the particular case at issue. However, the courts are often required to specifically address delineated factors spelled out in that state's statutes. Understanding those factors and addressing your custody arguments to those factors can be a critical part of the case. You must have a strategy and game plan in any custody dispute to present your case along with independent documentary evidence to support your position. If your case boils down to a "he said-she said" case alone, your chances of prevailing are greatly diminished and allow the court to issue rulings based on its particular bias. Historically, this has often favored mothers who were often the primary caretakers of the children in single income households. That result is only now slowly changing along with the trend for two income households as more women enter the workforce, often because of economic necessity. Some factors that state statutes often address are:

1   The wishes of the child's parent or parents as to custody;
2   the reasonable preference of the child, if the court deems the child to be of sufficient age to express preference most Courts do not consider the child to be of suitable age until the age of twelve or more;
3 the child's primary caretaker (who cooked the meals, took the child to the doctor, bathed the child, attended school functions and extra-curricular activities, helped with homework, provided discipline);
4   the intimacy of the relationship between each parent and the child;
5   the interaction and interrelationship of the child with a parent or parents, siblings, and any other person who may significantly affect the child's best interests;
6   the child's adjustment to home, school, and community;
7   the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
8   the permanence, as a family unit, of the existing or proposed custodial home;
9   the mental and physical health of all individuals involved;
10   the capacity and disposition of the parties to give the child love, affection, and guidance, and to continue educating and raising the child in the child's culture and religion or creed, if any;
11   the child's cultural background;
12   the effect on the child of the actions of an abuser that has occurred between the parents or between a parent and another individual, whether or not the individual alleged to have committed domestic abuse is or ever was a family or household member of the parent; and
13   The disposition of each parent to encourage and permit frequent and continuing contact by the other parent with the child.
Generally, courts may not use one factor to the exclusion of all others. Many people, attorneys included, tend to place a significant emphasis on which parent was the primary caretaker. However, this factor is only one of many and may not be used as a presumption in determining the best interests of the child.

Joint Physical Custody.

In order for a court to award joint custody, it must find that the parents have the ability to cooperate in rearing the children and have methods and a willingness to use methods for dispute resolution. In making such a determination, the Court must consider the following factors:

(a) the ability of parents to cooperate in the rearing of their children;

(b) methods for resolving disputes regarding any major decision concerning the life of the child, and the parents' willingness to use those methods;

(c) whether it would be detrimental to the child if one parent were to have sole authority over the child's upbringing; and

(d) whether domestic abuse has occurred.

ALLEGATIONS OF ABUSE.

Allegations of sexual or physical abuse are taken very seriously. Seeking a restraining order as part of a divorce proceeding has become a common occurrence and is sometimes an abused process designed to gain advantage in a custody proceeding or to acquire an early court date to have one party removed from the home. A finding of domestic abuse, whether it involves the minor children or not, may have a dramatic impact on the divorce proceedings. There is a very strong presumption under Minnesota law that physical custody should not be awarded to a domestic abuser. That means, a person who has been the subject of an Order for Protection (restraining order) or convicted of domestic assault may be unable to acquire physical custody. For this reason, allegations of domestic abuse must be vigorously defended in order to preserve your rights in a custody battle. This can be a vexsome issue since Courts regularly elect to err on the side of caution granting restraining orders in cases where the allegations and evidence are very weak. Do not fall into this trap. As stated previously:

*   Avoid all conflict if possible!
*   Assume any thing you say or do is being recorded!
*   Maintain your best behavior!

This can be very difficult in the emotional context of divorce. However, when you consider that most divorce cases are driven forward by emotional issues rather than legal ones, this becomes an absolute necessity to preserve your rights, facilitate settlement and reduce legal fees.

What is Domestic Abuse?

Domestic abuse is generally defined very broadly. Domestic abuse must be committed against a family or household member by a family or household member and include:

(1) physical harm, bodily injury, or assault;

(2) the infliction of fear of imminent physical harm, bodily injury, or assault; or

(3) terroristic threats; criminal sexual conduct; or interference with an emergency call within the meaning of section.
"Family or household members" include spouses and former spouses, parents and children, persons related by blood, persons who are presently residing together or who have resided together in the past, persons who have a child in common regardless of whether they have been married or have lived together at any time; a man and woman if the woman is pregnant and the man is alleged to be the father, regardless of whether they have been married or have lived together at any time; and persons involved in a significant romantic or sexual relationship.

False Allegations of Abuse.

False allegations of sexual or physical abuse are also taken very seriously. In many states there are statutes that allow the court to consider false allegations of abuse in making custody determinations. Moreover, false allegations of sexual or physical abuse to gain advantage in a custody proceeding may also result in criminal charges.

PREFERENCE OF CHILDEN.

Many people incorrectly believe that the children have an absolute right to choose where they will live. That is not the case. Under most state laws, a child may express a preference when that child has reached a suitable age and maturity level. Even if the child is able to express a preference, most courts do not place much weight on a child's preference before the age of twelve. Even at that age and older, the child's preference is only one factor out of the many statutory factors for determining custody.

Children as Witnesses.

Many parents wish to know if their children can be called as witnesses. Although opinions on this topic may vary, most psychologists agree that placing a child in the role of a witness can be very traumatic and is usually not in their best interests. Children present testimony in only rare cases. Where cases do require the testimony of children, Courts will often require that a Guardian Ad Litem speak with them and represent their interests and statements to the Court. The Court may also speak to the children directly in a less intimidating setting such as the Judge's chambers.

Extra-Marital Affairs.

Most states have Ano fault@ statutes. That means that you do not have to cite a reason for a divorce. Instead, it is only necessary that the relationship of the parties is irretrievably broken down. As a result, blame and shame are removed from the proceedings. Many people believe that an extra-marital affair makes a spouse an inappropriate parent to have custody. However, most courts view the extra-marital affair as irrelevant to the divorce issues. This is true even is states with fault based grounds. Courts will not render moral decisions. An extra-marital affair only becomes relevant if it somehow affects the "best interests" of the minor children. This occur only in limited cases where the parent's new significant other can be shown to have contact with and endanger the children.

Parenting Rights.

Custodial and non-custodial parents have certain parental rights. Those include the following:

·   Medical Care and Medical Records. Each party has the right of access to, and to receive copies of medical, dental, orthodontic, optometric and any other medical or psychological or counseling records and information regarding the minor child(ren). Presentation of a copy of this order to the custodian of a record, or other information, regarding the minor child(ren) constitutes sufficient authorization for the release of the record or information to the requesting party.

·   School and School Records. Each party shall keep the other party informed as to the name and address of the school the minor child(ren) is/are attending. Each party has the right to be informed by school officials about the child(ren)'s welfare, education progress/status, school events, and the scheduling of parent/teacher conferences. The school is not required to hold a separate conference for each party. Each party has the right of access to, and to receive copies of any school, daycare or religious information, records, report cards or other materials related to the minor child(ren).

·   Accident or Illness. In case of an accident or illness of the minor child(ren), each party shall notify the other party of the accident or illness, the name of the health care provider, and the place of treatment.

·   Reasonable Telephone Contact. Each parent has a right of reasonable access and telephone contact with the minor children.

The Court may waive any of these rights if it finds that it is necessary to protect the welfare of the children.
PREFERENCE OF CHILDEN.

Parties in a divorce proceeding may also craft their own parenting plans.

A parenting plan is simply a schedule which sets out the care giving responsibilities of each parent. Parenting plans should include:

1   a schedule of the time each parent spends with the child;
2   a designation of decision-making responsibilities regarding the child; and
3   a method of dispute resolution.

A parenting plan may also include other issues and matters the parents agree to regarding the child.

CUSTODY EVALUATIONS

Where parents are unable to agree on parenting plans or custody issues, the Court will require a custody evaluation performed. This may be carried out by county social workers, psychologists or a Guardian Ad Litem. A Guardian Ad Litem is a person that is appointed by the Court to represent the interests of a person who is unable to do so for themselves. In the context of a custody case, the Guardian Ad Litem acts as a spokesperson regarding what the Guardian believes is in the child's best interests.

To present your case in a custody evaluation, it is important to develop an EARLY GAME PLAN based on the factors that the court is likely to consider in your State.

CUSTODY REPORTS

The person performing the evaluation will investigate the facts and generate a report that is provided to the Court. The report will usually include a summary of the investigation, an analysis of the thirteen custody factors set out in your state's statutes and a conclusion regarding what is in the child(ren)'s best interests.

THE USE OF CUSTODY EVALUATIONS

The Court is not required to adopt the recommendations of a custody evaluator. However, in most custody cases, the parties have very polar positions regarding the facts. This often boils down to a "He Said - She Said" Situation at trial. Where the evaluation was performed by a person appointed by the Court, the evaluator is considered a neutral party and their recommendation may hold considerable weight with a Judge who must weigh conflicting testimony. To combat an unfavorable custody report, your attorney will try to point out the deficiencies of the investigation performed and facts that may have been overlooked by the evaluator. It is may also be necessary to hire your own expert to conduct a separate custody evaluation and present a different recommendation at trial.

POWERS OF THE EVALUATOR

The custody evaluator often has broad power and may require the parties to provide releases of information for counseling, medical or psychological records. The evaluator may also require psychological testing, chemical dependency evaluations or random urinalysis tests as part of the investigation process. This is particularly t

Lawmoe · Jul 30, 2004, 11:29:10 PM

CUSTODY STUDY ELEMENTS
Although each custody evaluator may have a slightly different approach to performing custody evaluations there are some things you should expect :

A. Initial Interview with Evaluator.
At the initial interview, the evaluator will discuss at length the past history of care with the child. The evaluator will attempt to determine who was the primary caretaker. BE PREPARED! At the initial interview arrive prepared with a chronology of events clearly set out.

B. Home Visit(s).
The evaluator will make at least one home visit to watch you interact with your child(ren). The evaluator is watching to see:

*    Whether you actively play with and interact with your child;
*    Whether you set appropriate boundaries for the child and whether the child obeys those boundaries;
*    Discipline used;
*   Child=s reaction to the parent;
*    Condition of the home environment.

C. Collateral Contacts.
The evaluator will ask for a list of persons that you think the evaluator should contact. Family members are usually not good contact since they may be biased in your favor. Where possible use independent contacts such as counselors, daycare providers, and school teachers.

D. Alcohol Assessments.
Where there are allegations of alcohol or drug abuse, the evaluator may refer you to a counselor for a chemical dependency evaluation. It is important that you cooperate in that process.

E. Psychological Evaluations.
Where there are allegations of emotional or anger problems, the evaluator may refer you to a counselor or psychologist for a psychological evaluation. It is important that you cooperate in that process. Make sure that you communicate with the evaluator or counselor regarding any and all appointments. Budget enough time to complete and testing that is required. A failure to cooperate will appear in the evaluation.

INTERACTING WITH THE EVALUATOR
How you interact with the custody evaluator may be a critical element of your custody case.
T   Custody evaluators will oftentimes make you believe that they agree with your side of the case. This is done so that you drop your guard. Never assume that the evaluator=s report will favor your position.
T   Custody evaluators are also people. That means they react to personalities. You are best able to present your case to an evaluator if you appear open and honest.
T   Do not argue with the evaluator. Make eye contact and listen when they speak. This establishes a connection. It may help to nod your head as they speak even if you disagree with what they are saying. When you disagree, tell them AI see your point, but...@ or agree first AI agree, but would you consider this to be important....@
T   The custody evaluator does not care about good guys and bad guys. The evaluator cares about what is in the Abest interests of the child(ren).@ To relate your case to the evaluator, you must speak his/her language. Your statements must relate in some way to what is best for the child not the parent. For example, the statement, Amy husband drinks too much@, is incomplete. It does not relate how the drinking affects the child(ren). Always relate how the conduct affects the child(ren). A better statement would be:

AMy husband drinks too much. Because of that, he is rarely home and when he is, he is:.... abusive....spends little quality time with the children....is unable to help the kids with their homework....@

T   Provide the evaluator with the documents supporting your statements.
T   Provide the evaluator with the names of collateral contacts, people who are aware of your strong points as a parent and the other party=s weak points. (It is usually better not to include relatives as part of your contacts since they may have a bias).
T   ALWAYS ASSUME when you go to court or visit a custody evaluator that you may be ordered to provide a urine sample for testing to determine if you have used drugs or alcohol.

PRESENTING YOUR CASE TO THE EVALUATOR
Remember, there are six magic words in custody evaluations.- ABest Interests of the Minor Child@. Custody evaluators listen for issues that relate to that phrase. You should relate how each of your proposals is beneficial to your child(ren). Wherever possible use phrases that mean Abest interest of the minor child@ without using those exact words. Using the exact words sounds too legalistic and prepared. Your statements should sound more natural.

There are certain things that evaluators look for in their custody evaluation. You should discuss these issues with the evaluator truthfully since the evaluator will, to a degree, assess your credibility. The issues you should be prepared to raise are the following:

Primary Caretaker.
Where has the child lived since birth? What was the extent of contact each parent had at each phase of the child=s life? What responsibilities did each parent have?
The best way to support the contention that you provided care for the minor child is through independent documentation. The other parent will no doubt contradict your assertions that you provided much of the care. Independent documentation may include:

$   Daycare or school records demonstrating drop off and pick ups or attendance at parent-teacher conferences. Even if you do not have documents demonstrating attendance at school functions at least verify the dates of the conferences and familiarize yourself with the daycare provider=s or teacher=s names. The more information you are able to provide in that regard the more credible you will appear as an active parent.

$   Medical records may document which parent brought the child in for a medical or dental appointment. If you can acquire these records prior to meeting with the evaluator, do so.

$   Homework assignments or report cards may require a parental signature before they are submitted at school. That signature may provide independent verification that the parent reviewed or was actively involved in the child=s schooling. Wherever possible acquire and retain these documents. Provide them to the custody evaluator to support your claims that you were actively involved in the child(ren)=s schooling.

Be able to relate who the child(ren)=s friends are and what activities they enjoy in detail.

Stability.
The evaluator will be interested in which parent is able to provide the greater stability for the child. Stability includes a stable residence and a stable job. You may wish to document the ways in which you have provided greater stability in the past. You obviously will not emphasize those areas that do not favor you.

To effectively present the areas where you have provided or are able to provide more stability, you may wish to create a detailed charts. Visual aids help to present a clear picture to the evaluator. For example you may wish to create a chronological chart regarding each parent=s residence and how many times the child has changed residences or schools. You may also wish to create a summary of each parent=s employment to demonstrate stable financial circumstances. Independent verification is also very helpful. Where possible, you may wish to procure documents demonstrating residence changes such as leases, purchase agreements or real estate taxes.

Endangerment or Neglect.
If you are raising issues of endangerment you must relate specific incidents. Endangerment may be physical, emotional or developmental. A calendar may be helpful to document the dates of the incidents. Documentation can carry critical weight with this type of allegation. Documents may include:
$    Medical reports documenting injuries from abuse or lack of supervision;
$   Medical reports documenting complications because of neglect - health issues such as asthma from cigarettes smoke or lice from lack of hygiene;

$   Police reports relating to police calls to the other parent=s home;
$   Child protection reports;
$   Counseling records for the child or the parent;
$   Criminal or driving record of the other parent;
$   Criminal or driving record of individuals that have significant contact with the minor child(ren);
$   School records may document attendance problems, school performance problems, counseling issues or erratic child behavior while in the other parent=s care or after returning from the other parent=s care.

REMEMBER:    Endangerment only exists if you tie the other parent=s conduct into the child=s
care and the child=s best interests. For example, if you allege the other parent has an alcohol problem. It
only will be effective if you can relate specific incidents where the alcohol use or abuse affected the
minor   child(ren). (eg. The parent passed out on the couch while the child played unsupervised. The
parent drove the child in the car while intoxicated. The parent was out partying consistently while the
child was be cared for by a stranger.)
Parenting Plans as Part of the Evaluation.
The custody evaluator will want to know what your proposal is for parenting. You should be prepared with research, facts and answers. You may wish to write out your answers to the following questions so that your response seems thought out. Do not over prepare, your response should not sound mechanical. The answers should include:

$   Where will the child live? Why is that in the child=s best interests?
$   What school will the child attend? Why is that in the child=s best interests?
$   What will your work schedule be?
$   Will that allow you sufficient time to supervise the child?
$   What schedule do you propose for the other parents?
$   How does that schedule provide stability?
$   Why is that schedule in the child=s best interests?
(Remember: The custody evaluator is also looking at which parent is more likely to facilitate contact with the other parent. If you appear to be an unreasonable obstructionist with regard to the other parent=s contact, it may be used against you.)
PARENTING NOTEBOOKS.
In a custody proceeding it is important to maintain a notebook including dates that events occur relating to the care of your children. What is the daily routine? Who takes them to the doctor? Who takes them to school activities? List any concerns regarding the other party=s parenting including the method of discipline, drug use, alcohol use, disabilities or neglect.

A parent that is not awarded physical custody has a visitation schedule. The term Avisitation@ is no longer used in many state Statutes. But do not be confused, the idea still exists. Instead, it is disguised by other terms like Aparenting time@ or Aparenting schedule@ or "alternate physical placement." This change occurred largely because of the term Avisitation@ was often interpreted incorrectly by parents as meaning that a parent with visitation is somehow inferior to one with custody. However, it is only the term that has changed, the schedules remain consistent.

SPECIFIC SCHEDULES PREFERRED.
General parenting schedules authorizing that the parent without physical custody may have reasonable and liberal visitation are never a good idea. They pave a path for future conflict and control over the schedule by the custodial parent. The best way to think of a specific parenting schedule is as a flexible template that can be modified as the parent's agree. However, it will provide a specific schedule that must be followed if the parents cannot agree. Non-custodial parents should view this as a safety net or a minimum visitation schedule.

COURT ORDERED SCHEDULES.
If the parties are unable to reach a visitation agreement, the Court will craft its own schedule. Oftentimes, Court ordered schedules do not make either party happy which results in later disputes. Most people understand that Courts often rubber stamp parenting schedules in a Aone size fits all@ kind of manner. We all have family or friends who have a schedule which includes:

1.   Weekly Schedule: Alternating weekends from Friday - Sunday and one evening per week.
2.   Holiday Schedule: The parties shall alternate legal holidays including Christmas Eve Day, Christmas Day, New Year=s Day, Easter Weekend, Memorial day Weekend (Fri-Mon), Independence Day, Labor day weekend (Fri - Mon), and Thanksgiving day. The child shall be with the mother on mother=s day and the father on father=s day.
3.   Extended Schedule: Each parent shall have two (sometimes up to four) consecutive or non-consecutive weeks with the child each summer upon 30 days advance written notice to the other party.

By imposing such a schedule in so many cases, the Courts often fail to consider individual work schedules and circumstances. As a result, it is usually in the best interests of the children and the parents if agreement on a schedule is reached.

NON-PAYMENT OF CHILD SUPPORT AND VISITATION RIGHTS.
The Legal system treats visitation and child support as separate issues. It is important to remember that a parent=s failure to pay support because of the parent=s inability to do so shall not be sufficient cause for denial of visitation.

DENIALS OF VISITATION.
A court may order make-up visits to compensate a person denied visitation. The compensatory visitation should be of the same type and duration or greater as the visitation that was missed. The Court may also:
<   impose a civil penalty in some states;
<   find the party denying visitation in contempt of the Court=s order;
<   require the party denying visitation to post a bond in order to ensure compliance; award reasonable attorneys fee to the party denied visitation;;
<   require the party denying visitation to reimburse the other party for any costs;
<   change custody for unwarranted, continuous and systematic interference with visitation;
<   award any other remedy that the Court deems reasonable.

PARENT CARE VS. DAYCARE.

Many state statutes also specifically allow Courts, in their discretion, to allow a non-custodial parent additional visitation to provide child care while the custodial parent is working. However, in making such a determination, the Court must consider the parties ability to cooperate, whether they have methods for resolving disputes, and whether domestic abuse has occurred. This is often called a right of first refusal." They may be modified as the parties see fit. In some case, the parties will spell out that a right of first refusal that becomes effective only if the parent charged with care of the children will be absent for a specific period of time or more. (eg. 4 hours).

DISPUTE RESOLUTION BY MEDIATORS AND VISITATION EXPEDITER.
The Parties may agree or the Court may order the parties to mediate visitation disputes or to submit those disputes to a visitation expediter. The records and statements made to a mediator or a visitation expediter are confidential and cannot be later used in Court. Moreover mediator and visitation expediter cannot be called as witnesses.

<   A mediator helps the parties to communicate and resolve their differences by agreement.
<   A visitation expediter, by contrast, may begin by attempting to mediate the dispute. However, is a resolution is not reached, the expediter is authorized to settle disputes by enforcing, interpreting, clarifying or addressing issues not specifically addressed by an existing order. A visitation expediter may be appointed to resolve a one time dispute or to provide ongoing services. Generally speaking, use a visitation expediter is a fast and less costly way to resolve disputes. The costs are generally divided between the parties.

CHILD SUPPORT GUIDELINES

An award of physical custody to one party can have a significant financial consequence. This is called child support. Even where parent's share physical custody, one parent may pay support to the other if there is a disparity in their earnings or the amount of time each spends with the children.

In response to federal government pressure related to federal funding, each state developed its own child support guidelines. These guidelines must be reviewed every four years in each state and are constantly changing. Child support guidelines involve the application of rigid formulas. The amount determined by use of a state's guideline is legally presumed correct in all child support cases. Although parents may challenge the presumptive amount, for the most part, the guidelines are adhered to with little flexibility related to individual circumstances. The end result has been a dramatic increase in the amounts courts order in child support cases.
In many states, child support is based on the net or gross income of the non-custodial parent. For example, Wisconsin bases its child support on the gross income of the non-custodial parent. By contrast, Minnesota bases child support on net income of the non-custodial parent and the number of children that the parent may have. An example of that guideline is set forth below:

Net Income Per Month of Obligor   1   2   3   4   5   6   7 or more
$550 and Below   Order based on the ability of the obligor to provide support at these income levels, or at higher levels, if the obligor has the earning ability
$551 ? 600   16%   19%   22%   25%   28%   30%   32%
$601 ? 650   17%   21%   24%   27%   29%   32%   34%
$651 ? 700    18%   22%   25%   28%   31%   34%   36%
$601 ? 750   19%   23%   27%   30%   33%   36%   38%
$751 ? 800   20%   24%   28%   31%   35%   38%   40%
$801 ? 850    21%   25%   29%   33%   36%   40%   42%
$851 ? 900   22%   27%   31%   34%   38%   41%   44%
$901 ? 950   23%   28%   32%   36%   40%   43%   46%
$951?1000   24%   29%   34%   38%   41%   45%   48%
$1001 ? 5000   25%   30%   35%   395   43%   47%   50%

There has been a more recent trend to base statutory guidelines on what is known as the "Income-Shares
model" that considers the income of BOTH parents.

State statutes will also often define whether overtime income, second jobs, bonus income or commissions can be used in the calculation of child support. This varies broadly from State to state. In most states, child support statues exclude the income of a new spouse.

DEVIATIONS IN CHILD SUPPORT.
The child support guidelines create a "rebuttable presumption" regarding the amount of support paid. That means that they are used to determine child support unless sufficient factual information exists to rebut the fairness of the amount. As a rule, it is very difficult to convince a court or a magistrate to deviate from these guidelines.

<   Downward Deviations. Downward deviations in child support are most often granted:

Extended Time Spent with Children. If the non-custodial parent spends a significant amount of time with the minor child(ren) which increases that parent=s costs or expenses, child support may be reduced. Generally speaking, a significant amount of time must be substantially greater than a normal visitation schedule.

Children from Another Relationship. If the non-custodial parent has children from another relationship for which he has a financial support obligation, the Court may consider that responsibility in departing from child support guidelines. In the State of Texas there is a statutory reductin that applies for subsequently born children.

Other Factors. The Court may consider any other factors relevant to a downward deviation. In most cases, the Court will not give much weight to the expenses or debts or the non-custodial parent that are unrelated to the child(ren) or intended to produce income.

<   Upward Deviations. Upward deviations may be granted by considering the following:
Standard of Living. If the non-custodial parent has an income substantially greater than the cap figure set out in the child support guidelines, the court may consider the standard of living the child would have enjoyed had the marriage continued to exceed the child support guidelines.

Medical or Special Needs. The Court may deviate upward from child support guidelines if it determines that there are special financial needs that make the increased child support appropriate. This may include special medical needs or a disabled child.

Other Factors. The Court may consider any other factors relevant to an upward deviation.

JOINT CUSTODY AND CHILD SUPPORT.
Joint legal custody does not have any affect on child support. However, joint physical custody does have an effect. Although, sharing physical custody does not mean that child support eliminated, it does allow for a reduction based on the respective incomes of the parties and the amount of time that each spends with the child.

STIPULATIONS REGARDING CHILD SUPPORT.
Agreements of the parties that are not recorded as part of a Court order are never binding on a Court. In fact, most courts will not adopt agreements regarding child support that does not reflect child support guidelines or that does not provide a reason to depart from the guidelines. Child support is considered a right of the child, not a right of the parents. As a result, parents cannot agree to modify the child's rights. It is considered by the Court to be the equivalent of having a disinterested party agreeing to modify someone else's contract.

Though this sounds like a harsh result where parents are willing to agree on a child support amount, from a practical standpoint there are ways to ensure that most agreements reached by parents are ratified by the Court. Often it is just a matter of providing some additional facts or the correct language for the Court to accept an agreement on child support. You should speak with a lawyer regarding memorializes=g and enforcing such agreements.

Contribution to daycare expenses is a child support obligation in addition to support set by Child support guidelines. Only certain qualified child care expenses are divided between parents. The child care expenses must be incurred based on the custodial parent's attendance in an educational program or work.

HOW LONG DOES CHILD SUPOSRT LAST?
State statutes also vary in this regard. Sin a minority of state, child support will terminate when the child reaches the age of 18 and graduates from high school. In many other states, child support may also be paid id the child attend post secondary education. The contribution of each parent to that education is not standard and will depend greatly on each state and the parties' income. In most instances it is an amount lower than regular child support.

In almost all states, child support may be extended beyond the age of eighteen if the child suffers from a disability and is incapable of being self supporting because of that disability.

DAYCARE COSTS
Many states also require a child support contribution above child support guidelines if there are daycare expenses related to the custodial parent's employment or education.
Generally, daycare providers require weekly contracts even if the children) do not attend the daycare full time. As such, parents are often required to divide the cost of weekly daycare even though the child may not attend the daycare full time each week.

In some states, the costs of daycare are often divided in proportion to each parent's net income after the transfer of child support and spousal maintenance, unless the allocation would be substantially unfair to either parent.
HEALTH INSURANCE
In a divorce or legal separation the Court may also be called upon to determine who pays for health insurance costs. As a general rule, each parent generally provides their own health insurance. Where children are involved and support is paid, the Court is required as part of its order to determine which parent must provide the health insurance for the minor children.

The parent with the better group health and dental coverage for dependents is usually required to maintain health insurance for the minor children. If the court finds that dependent health or dental insurance is not available on a group basis or through an employer or union, the court may require the parent
$   to obtain other dependent health or dental insurance,
$   to be liable for reasonable and necessary medical or dental expenses of the child.

In cases where the person providing the health insurance has a greater earning capacity, the Court may not require the other parent to contribute to the health care premiums. Where the parents are similarly situated financially the Court may require each parent to contribute equally to that cost. The cost includes only the cost attributable to the children. For example, if a parent=s employer require the parent to contribute $70 per month for single coverage for that parent and $150 for family coverage or to add children, the parents divide only the premium associated with the children=s coverage.

UNINSURED MEDICAL EXPENSES

In almost all cases, the Court requires each parent to contribute to any medical or dental expenses that are not covered by insurance including co-pays, prescriptions, braces and any other extraordinary expenses. The Court may require the parents to pay these costs equally or proportionate to their income.

If the court finds that the available dependent health or dental insurance does not pay all the reasonable and necessary medical or dental expenses of the child, including any existing or anticipated extraordinary medical expenses, and the court finds that the parents have the financial ability to contribute to the payment of these medical or dental expenses, the court may require either or both parents to be liable for all or a portion of the medical or dental expenses of the child not covered by the required health or dental plan. Medical and dental expenses include, but are not limited to, necessary orthodontia and eye care, including prescription lenses.

It is important to include in any agreement or order a mechanism for exchanging these costs between parents or a repayment of these costs. If that is not done it often results in later conflict. The most common conflict is what one parent does not provide regular invoices and statements seeking contributions. At some point, the other parent is presented with a significant reimbursement bill for these expenses that is demanded. So very often, there are no financial responses to presently contribute to the entire amount of the outstanding costs. It may be wise to include in the order that these expenses are exchanged quarterly and repaid within that same time periods.

CHILDREN AS TAX DEDUCTIONS

State divorce courts also have the authority to determine which parent claims the children as dependents and exemptions on their taxes. This is often based on the amount of support provided and the benefit that each parent receives based on their relative incomes. It is not unusual to see Court orders that allow a non-custodial parent to claim one or all of the children as deductions and exemptions so long as that pay is current in child support at the end of the year.

It is important to recognize that the Internal revenue Service is not bound by the se state Court pronoucements and may require parties to file a different way if they discover a discrepancy. In such situations, however, the State Court maintains jurisdiction over the parties and through its contempt powers may require the parties to file amended returns.

PROPERTY AND DEBT DIVISION

In any divorce case, there is usually a division of assets and a determination of each person's responsibility for debts. Most states, are considered "marital property" states. This means that any asset acquired and any debt incurred during the marriage is the asset or debt of both parties

THE MARITAL ESTATE

In a divorce, the parties divide up what is called the "Marital Estate." The marital estate includes any assets or debts that were acquired during the marriage. Each spouse is generally deemed to have an equal interest in marital assets or debts.

This true no matter how the property is titled or held and no matter which spouse's job paid for the asset or which party incurred the debt. That means the marital estate includes a 401K account or a credit card debt that is in your spouse=s name alone. In fact, marital property is inclusive and encompasses 401K plans, stock plans, stock options, real estate, frequent flier entitlements, bank account proceeds, couches, chairs, cars, utility debts, credit card debts and any other form of asset or liability. Retirement plans are specifically included.

Essentially, the law views marriage as a civil partnership with many of the characteristics of a business partnership. When you join a business general partnership, each partner has an equal interest in the ownership of the business and is exposed equally to the liabilities of the partnership. This is true even if one partner incurs the debt on behalf of the partnership or one partner performs all the work making the partnership a more valuable asset.

Where there are property disputes in divorce, many courts and Judges are not particularly fond of hearing those issues. This particularly true when the dispute involves assets that are primarily household furnishings. As a result, courts often render very unsatisfactory Orders related to the division of household furnishings. In fact, in one memorable case, the Judge gave one spouse half of the dining room table and half the chairs and the other spouse the other half. In the end, the judge stated, "if you don=t like what I did here, you will go out in the hall and find a better solution." This is certainly an aberration and not the norm. However, it does underscore the Court=s general dislike in dealing with property issues. There are any number of ways to creatively divide household furnishings and personal property when disputes occur. In some cases, the parties may make a list and alternately choose an asset. In other cases, parties may bid on each item of property and the highest bidder both receives the asset and has that value credited to him or her as part of the property division. This may result in an payment from one spouse to the other to equalize the value of the assets received by each. In yet other cases, the one party may create two lists of assets and the second party then has first choice which list and assets he/she will receive.
Mediation is always a potential option for such divisions.

NON?MARITAL ASSETS

Certain assets may be excluded from the marital estate which means that they are not divided between the parties. These are called non?marital assets. Any non?marital assets that you possess remain yours and any non?marital assets of your spouse remain his assets. Although the definition of non?marital assets may vary from state to state, as a general rule non?marital assets may include:

Premarital. Any asset acquired before the marriage (if the asset was encumbered by a loan that was paid off during the marriage, it may only have a partial non?marital value);
Prenuptial Exclusions. An asset excluded by a valid prenuptial agreement;
Personal Injury Proceeds. Personal injury settlements are generally considered personal to the injured party and are non?marital in nature;
Inheritance. Any proceeds or assets from an inheritance;
Gifts. Any asset acquired as a gift to one, but not both parties.

It is important to recognize that in most states assets are considered part of the marital estate unless proven otherwise by a "preponderance of the evidence." This places a significant burden on any person making a non?marital claim to prove it. It is essential that any and all documents including documents of title, receipts, or canceled checks that support your non?marital claims must be provided. Any failure to provide documentation may result in the division of the asset in the divorce.

LOSING NON?MARITAL VALUE

Non?marital assets may have both a marital and non?marital value. In some cases, non?marital assets may lose their non?marital characteristic. This can occur in several ways:

Co?mingling. If non?marital proceeds are co?mingled with marital proceeds so that is becomes difficult to identify the non?marital asset, the non?marital characteristic may be lost. For example, placing non?marital proceeds in a joint bank account may not immediately eliminate a non?marital interest. However, if marital proceeds are added to the bank account or if proceeds from the account are paid out for regular living expenses, it is more likely that the non?marital value will diminish since it is impossible to determine which proceeds came out first ? the marital proceeds or the non?marital proceeds.

Marital Improvements. Additionally, spending marital money (any money earned by either party during the marriage) to improve a non?marital asset may also create a partial marital interest in an otherwise non?marital asset. The increase in the value of the asset attributable to the improvement is likely to be considered marital.

Active Appreciation. Courts often make a distinction between "active" and "passive" appreciation. Passive appreciation of a non?marital asset remains non?marital. Passive appreciation occurs when an asset increases in value without any action by the parties. For example, if the value of real estate increases without the parties improving the property, it is considered passive. Active appreciation is a marital asset. Active appreciation occurs when the value of an asset increases because of an act by the either of the parties during the marriage. Capital improvements to real estate during a marriage may create a marital interest since a capital improvement is likely to add to the property's value. Manipulating a stock account or transferring a mutual fund from one account to another resulting in an increase in value may also be "active appreciation" which creates a marital interest in an otherwise non?marital asset.

TRACING NON?MARITAL VALUE

Non?marital assets may be "traced" into later acquired assets giving the party with the original non?marital interest a non?marital interest in the new asset. For example, if one spouse owned a vehicle before marriage and that vehicle is later traded in for a new vehicle during the marriage, that party may be able to trace a non?marital interest in the new vehicle. Tracing is really the process of establishing a sufficient paper trail to claim a non?marital interest in a subsequently purchased asset.

REAL ESTATE

Tracing issues are often difficult and have led to numerous appellate court cases to help define procedures for determining non?marital value in real estate. Different states use very different procedures. Some state use procedures that allow a party the value of their non-marital contribution. Others, allow the party not only their original investment but appreciation on that investment. Knowing how your state approaches these issues is important.

Minnesota has a unique approach that allows the party to claim their investment and appreciation on that investment. It is commonly called the "Schmitz formula"

The formula provides a simplistic model to help determine non?marital interests in real estate. Since real estate mortgages and other encumbrances against property are paid off over a significant period of time, marital interests may be created in real estate that was owned by one party before the marriage. As encumbrances are paid off during the marriage, a marital interest is created.

The formula states that the proper calculation of a non?marital interest may be derived by determining the ratio of equity to market value at the time of the marriage and then using that same fraction to determine non?marital interest at the time of divorce. For example, lets assume a spouse owns a home prior to marriage and that home has a value of $100,000 at the time of the marriage and that is encumbered by a mortgage of $75,000. The $25,000 equity (the difference between the value and the encumbrance) becomes the numerator in the Schmitz formula and the value of $100,000 becomes the denominator. As a result, the non?marital interest is 25% of the home's value. If the home appreciates to $200,000, the spouse with the non?marital interest may claim the first $50,000 as the non?marital interest and any remaining equity would be divided as marital.

Like most formulas, the limitations are obvious. First of all, it may be very difficult to determine with any degree of accuracy the value of real estate at the time of marriage unless an appraisal is done at that time. That value alone may become a contested issue that results in litigation and testimony of experts.

Second, in many instances, mortgages are refinanced after marriage, second mortgages and home equity loans may also be incurred. These new debts may erase or partially erase a non?marital interest.

Third, the formula does not consider the effect that capital improvements made during the marriage have on the real estate value. Capital improvements that are made during the marriage and which increase the value of the real estate may erode some of the non?marital interest represented by the Schmitz formula.

Often, presenting a persuasive property case depends on clear cut documentation, and expert testimony. It is important to consult with a lawyer regarding significant non?marital issues.

SPOUSAL MAINENANCE

"Alimony" is the term used in many states for financial support paid to a ex-spouse after a divorce. In Minnesota the term Aalimony@ has been replaced with the term ASpousal Maintenance.@ The terms are synonymous. In some states, an award of alimony may be based on marital fault. Additionally, in some states, dating before the divorce is final may affect an award of spousal maintenance.

Unlike child support statutes, very few states provide percentage guidelines to determine when spousal maintenance is appropriate or at what level. Instead, in most states, trial courts have broad discretion in deciding whether to award maintenance and in determining its duration and amount. As a result, spousal maintenance often becomes one of the most contested issues in divorce proceedings.

Some factors that courts will consider include:

$   lacks sufficient property, including marital property apportioned as part of the divorce to provide for the reasonable needs of the spouse considering the standard of living established during the marriage, especially, but not limited to, a period of training or education; or
$   is unable to provide adequate self-support, after considering the standard of living established during the marriage and all relevant circumstance, through appropriate employment, or
$   is the custodian of a child whose condition and circumstances make it appropriate that the custodian not be required to seek employment outside the home.
These factor have sub-factors that must be considered including:
$   The financial resources of the spouse seeking maintenance;
$   The amount of time that is necessary for the spouse seeking maintenance to acquire necessary skills or education to find appropriate employment;
$   The age and physical and emotional health of the recipient spouse;
$   The standard of living established during the marriage;
$   The length of the marriage;
$   The contribution and economic sacrifices of a homemaker including loss of seniority, retirement benefits and other employment opportunities foregone while working at home.

Awards, Denials and Modifications of Maintenance

If the parties are unable to resolve disputes related to spousal maintenance, after a trial that considers the factors set out in the previous section, a court may:
$   award spousal maintenance;
$   reserve spousal maintenance (not award maintenance currently but leave the matter open for further review);
$   deny spousal maintenance.
Awards of spousal maintenance may be "temporary" or "rehabilitative", designed to rehabilitate the spouse so that he/she may become self-supporting, or "permanent."

No matter whether spousal maintenance is awarded, denied or reserved after a trial, the issue may be always be readdressed and spousal maintenance modified upon a showing that there has been a substantial change in circumstance making the original award (or denial) unreasonable or unfair.

From a practical standpoint, it is unlikely that a Court denying spousal maintenance would later change that determination absent compelling circumstances. A compelling circumstance may include a critical illness befalling the party seeking maintenance which renders that person incapable of working or providing for their own support. There would also have to be a showing that the person from whom maintenance is sought has the ability to contribute.
Temporary awards of spousal maintenance usually dictate factual presumptions on which the award is based. For example, maintenance may be awarded for a period of five (5) years at a certain level predicated on the recipient enrolling in and completed educational courses and finding employment in that period of time. Either party may bring the matter back before the Court if the recipient becomes self supporting at an earlier date or, through no fault of his/her own, fails to find employment within the designated period. Orders setting forth detailed educational and employment time lines on which the maintenance award is based tend to favor the person paying spousal maintenance since the recipient must demonstrate good cause why the time lines were not followed or achieved to extend the spousal maintenance beyond that period.

Waivers of Spousal Maintenance
There are only one way to preclude the Court from having jurisdiction to award spousal maintenance. Statutes relating to spousal maintenance awards in most states specifically allow the parties to enter into a private agreements that preclude or limit spousal maintenance awards. These agreements may take the form of properly executed prenuptial agreements or agreements reached as part of the divorce proceedings.

Spousal Maintenance Buy-outs
In most cases, the interests of persons asked to pay spousal maintenance are better served by offering an immediate buy-out of spousal maintenance in return for a waiver that would preclude the court from modifying spousal maintenance in the future. This buy-out may occur as part of a property settlement that favors the party seeking maintenance.
To determine what amount to offer or accept as a buy-out, it is important to consider two factors:
$   the present value of the asset
$   the tax consequences

Present value refers to the value of a dollar today as compared to the value at some point in the future. Remember, a dollar paid today is more valuable than a dollar received next year or even next week since the money properly invested would gain interest over that period. As a direct result, a buy-out of spousal maintenance will always be less than the total value of the spousal maintenance paid over time.

Imputing Income
Imputation of income is a harsh result where the Court requires a party to pay spousal maintenance (or child support) based on earning capacity rather than true income. For example, if one party quits a job and reduces his/her income voluntarily or if a party fails to seek gainful employment though able-bodied, the Court may base that person's income on earning capacity. Oftentimes, the person's prior work history plays a pivotal role in determining what they have the ability to earn.

To award maintenance based on earning capacity, the court must usually make findings that an obligor is underemployed in "bad faith." A person is often not considered voluntarily unemployed or underemployed upon a showing by the parent that the unemployment or underemployment:
(1) is temporary and will ultimately lead to an increase in income; or
(2) represents a bona fide career change that outweighs the adverse effect of that parent's diminished income on the child.

Evidence that may be presented to demonstrate "bad faith" or earning capacity include:
$   Past Income information;
$   Past employment history;
$   Educational history;
$   Documents or awards related to education or work achievements;
$   Documents demonstrating that previous employment was voluntarily terminated.

Evidence that may be presented to rebut allegations that a person is self-limiting his or her income in "bad faith" include:

$    Documents demonstrating that the termination of prior employment was involuntary (eg. Documents indicating that the person was fired or was required to quit for medical reasons);
$   Any documentation of efforts to seek substitute employment (eg. Job applications, rejection letters, newspaper ads);
$   Documentation that job skills are outdated for a job similar to the one that was terminated.

Tax Consequences of Spousal Maintenance
In deciding whether to "buy-out" the other party's spousal maintenance, it is important to consider the tax consequences.

Property or proceeds exchanged as part of a property settlement is not taxable event. The proceeds paid are not deductible to the payor or taxable to the recipient. By contrast, the payment of spousal maintenance is a taxable event. Spousal maintenance is tax deductible by the person paying. It is not included as income for the obligor giving that party a dollar for dollar offset against his/her earnings. By contrast, spousal maintenance that is paid is included as taxable income by the person that receives it.
It is also important to note that attorney's fees incurred by a party seeking spousal maintenance may be tax deductible as an expense incurred for the production of income. You may wish to speak with your attorney regarding that issue.

Vocational Evaluations
To determine the skill level of a spouse seeking spousal maintenance, it may be necessary to have a vocational evaluation performed. If requested by a party, it is likely that a Court will require the party seeking spousal maintenance to cooperate with such an assessment.
A vocational evaluation is conducted by a Qualified Rehabilitative Consultant (QRC). During the evaluation stage, the QRC will administer a series of questionnaires designed to highlight the vocational strengths and weaknesses of the party being tested. With theses test results, the QRC examines the fields of employment in which the person examined is likely to have the most success. The evaluation also analyzes the past work and educational history of the individual as well as that person's employment goals.
After the evaluation has been performed, the QRC drafts a report that identifies the fields in which the tested person has demonstrated strengths. The report then analyzes the field to determine what additional education is necessary, if any; the likely period of time for completing that education; the costs associated with the education; and the likely wage that the tested person is likely to achieve after education and training.
The results of a vocational evaluation may be challenged at trial. However, these independent experts hold great sway with the Court in determining the amount and duration of spousal maintenance awards.

How to Present Your Maintenance Case
As previously stated, some relevant factors considered by the court in deciding whether to award spousal maintenance include the finances of the parties, the education levels of the parties, the work histories of the parties, the health of the parties and the standard of living the parties established during the marriage. In order to properly document these issues at trial you should provide the following:
   A written history of employment for both parties including a job description, the name of the employer, the wage paid and period of time worked;
   A written history of each party==s educational background including schools attended, years attended and degrees or certifications achieved;
   Tax returns for each year of marriage including W-2 and 1099 forms for each party;
   A written chronology of vacations taken during the marriage;
   Photographs and post cards of vacations taken during the marriage may provide a pictorial history to supplement the written history;
   A written list of assets and luxury items owned at any time during the marriage (even if not presently owned) including the date that each item was acquired, its value and the date of disposition. You should include items such as jewelry, recreational vehicles, real estate, condos, interests in businesses or corporations, and time shares;
   Financial documents verifying the value of luxury assets;
   Financial account records demonstrating the value of each item;
   Checking account registers and credit card statements demonstrating the spending habits of the parties;
   A written list of necessary monthly expenses.

AWARDS OF LEGAL FEES
In a divorce proceeding, the Court may also require one party to pay all or a portion of the other party=s legal fees. The Court can award attorney=s fees on one of two basis:

$   Need Based
$   Fault based

Need based legal fees may be awarded in an amount necessary to enable a party to carry on or contest the proceeding, provided that the Court finds:
(1) that the fees are necessary for the good-faith assertion of the party's rights in the proceeding and will not contribute unnecessarily to the length and expense of the proceeding;
   (2) that the party from whom fees, costs, and disbursements are sought has the means to pay them; and
   (3) that the party to whom fees, costs, and disbursements are awarded does not have the means to pay them.

Fault based fees may be awarded if the Court finds that one party has contributed unreasonably to the length and delay of the legal proceedings and thus increased the fees, costs, and disbursements related to the proceedings.

CONCLUSION

Divorce remains one of the most emotionally taxing experiences in life. If you have gone through a divorce or know someone who has, you know the pain and grief a litigated divorce can bring to both parties and to their children. You know how our adversarial system often promotes bitterness, needless expense, and emotional scars that may take years to heal. As a result, it is important to understand your issues and to explore alternatives to the court process.

Written By:

Maury D. Beaulier
Attorney at Law
Minnesota Lawyers
(952) 746-2153
Http://www.divorceprofessionals.com

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Lawmoe

Lawmoe