Thursday, May 30, 2013

How Spouses Should Handle Inherited IRAs


Spouses have the most flexibility when it comes to inheriting individual retirement accounts (IRAs). The basic rules are:

    * The spouse may treat the inherited IRA as his or her own, roll it over into his or her own IRA, or remain the beneficiary on the account.

    * The spouse may only treat the IRA as his or her own if he or she is the sole beneficiary. If there are multiple beneficiaries, the account can be separated so the spouse's share is in its own account. When the spouse elects to treat the IRA as his or her own, the IRA is simply retitled as the spouse's IRA. As an alternative, the spouse can roll the balance over to his or her own IRA. Since the account is then considered the spouse's, the spouse can then name his or her own beneficiaries. Withdrawals are subject to a 10 percent federal income tax penalty if the spouse has not reached age 59 and 1/2 and the spouse must start taking required minimum distributions (RMDs) at age 70 and 1/2. RMDs are calculated using the uniform table, which assumes a joint life expectancy with the beneficiary considered 10 years younger.

    * If the spouse remains the beneficiary of the IRA and is the sole beneficiary, distributions are required by the later of the year the original IRA owner would have reached age 70 and 1/2 or by December 31 of the year following the IRA owner's death. If the spouse is not the sole beneficiary, then distributions must begin by December 31 of the year following the IRA owner's death. RMDs are calculated based on the single life expectancy table for beneficiaries. However, a spouse recalculates his or her life expectancy every year by looking up the life expectancy factor on the table. For non-spouse beneficiaries, the beneficiary gets the life expectancy figure from the table in the first year, but in each subsequent year reduces the factor by one year. Since the table assumes a single life expectancy, distributions would be higher than if the spouse treated the IRA as his or her own. Although lower RMDs are required when a spouse rolls over or treats the IRA as his or her own, there are circumstances when the spouse might want to remain the beneficiary:

    * A spouse under the age of 59 and 1/2 can make withdrawals from the beneficiary account using the life expectancy table, without paying the 10 percent federal income tax penalty. Once the account is rolled over, withdrawals before the age of 59 and 1/2 would result in a 10 percent federal income tax penalty.

    * A spouse who is significantly older than the deceased IRA owner can delay RMDs by remaining the beneficiary. He or she would not have to take RMDs until the deceased spouse would have reached age 70 and 1/2, even if the surviving spouse is already past age 70 and 1/2.

When a Roth IRA is involved, the surviving spouse would normally want to roll the Roth IRA over or treat it as his or her own. Then, the Roth IRA would be treated as his or her own and no distributions would be required during his or her lifetime. If the surviving spouse remains the beneficiary, then distributions would be required as stated above for traditional IRAs.

Buying Out an Ex-Spouse's Stock in a Closely Held Firm

Let's say divorcing spouses own part of the stock in a closely held corporation. One of them now want to buy out the other party's shares by transferring some assets in exchange for the stock.

As long as the transfer happens before the divorce is final, there are usually no federal income tax or gift tax consequences. This is because of the tax-free transfer rule that generally applies to transfers of assets between spouses. (Source: Section 1041(a) of the Internal Revenue Code.)

The same tax-free treatment also usually applies to stock buyouts that occur within six years after a divorce, provided they are done pursuant to the terms of a divorce property settlement. Assuming the tax-free transfer rule applies, one spouse simply takes over from the other spouse the tax basis and holding period for the stock purchased. It is as if the buyer had always owned the shares and the selling spouse has no taxable gain or loss on the deal. This harmless tax outcome is generally acceptable to both spouses.

When the Buyer is the Corporation, Things Can Get Complicated

However, the tax outcome is not quite so simple when a closely held C or S corporation redeems, or buys back, an ex spouse's shares in the same company. Such third-party divorce-related stock redemptions can fall into two situations, both of which have tax consequences:

Situation 1:
The redemption transaction is considered to be strictly between the selling ex-spouse and the corporation. There are no federal tax consequences for the other ex-spouse. Depending on the circumstances, the selling ex-spouse may be able to treat the redemption as a sale of his or her stock back to the corporation or as a dividend paid by the company.

Generally, sale treatment is preferred, because the selling ex-spouse can offset the stock redemption payment with his or her basis in the redeemed shares. In this situation, the seller bears all the tax consequences. For the other ex-spouse, the corporation's redemption of the stock has no tax impact.

Situation 2: The tables are turned. The actual transaction is still between the corporation and the ex-spouse redeeming the shares. However, for tax purposes, the deal is treated as if the other ex-spouse collected the redemption payment and then transferred it in exchange for the shares. So in this situation, the redeeming ex-spouse has no tax consequences while the other party bears all of the tax burden.


Depending on the circumstances, the spouse who owes taxes may be able to treat the constructive redemption as a sale of his or her stock back to the corporation or as a dividend.

So Which Situation Applies?

This is where it gets tricky. In a nutshell, Situation 2 applies if the corporation redeems a former spouse's shares to fulfill a binding legal obligation that the other spouse had to buy those shares under the couple's divorce agreement. In essence, because the corporation actually supplies the money to buy the shares, one spouse is taxed as if he or she received the money from the company and then spent it to buy the stock from the selling ex-spouse, as legally required by the divorce agreement.

But There is a Way to Reverse the Tax Results

Regardless of which situation applies, the former spouses can together elect to reverse the tax results. In other words, when Situation 2 would otherwise apply (meaning one party would bear all the tax consequences), the couple can elect to reverse the results and have Situation 1 apply instead.

The two parties may be willing to cooperate in making this election -- for example, because the redemption would be treated as a sale and one ex-spouse has a large capital loss that would offset the gain from the redemption. Needless to say, some paperwork is involved to make the election, and there are deadlines, so planning ahead is critical. (Source: Treasury Regulation 1.1041-2.)

Conclusions: Looking at it from an arm's-length perspective, a divorce is a major financial transaction. As such, it has important tax consequences for both former spouses. This is especially true when business ownership interests are involved. The ability to choose which ex-spouse will be taxed on a divorce-related stock redemption allows the couple to tailor the tax outcome to suit their respective circumstances. Done properly, there's more left for the two to divide up, because the tax collector gets less.

Tuesday, May 28, 2013

A divorce attorney who's a perfect fit

How to find a family lawyer tailor-made to suit your divorce's unique needs.

"So far, Jane's divorce has cost us about $120,000. It'll probably be closer to $150,000 by the time the dust settles." Micheal, a Chicago-based architect, is speaking about his fiancee's extremely bitter split with her ex-husband. "We hired the best divorce lawyer money could buy, and it was worth every penny," he asserts forcefully.

On the other side of the coin is Susan, an assistant editor at a Toronto newspaper. "We each entered the marriage with nothing, and we left with nothing," says Susan. "No kids, no money, no investments, no assets. Since we managed to remain on good terms throughout our separation, we opted for a do-it-yourself divorce. Our divorce agreement basically consisted of us saying, 'You take the microwave, I'll take the TV set'," she adds.

If you're like most separated North Americans, your situation is probably somewhere between Jane's and Susan's: you've acquired some assets -- or children -- during your marriage, and you and your ex are relatively civil to one another most of the time. You've also probably never had occasion to retain a divorce lawyer before, and may have no idea how to go about finding the divorce lawyer who's right for you.

The search begins

"Unfortunately, many people spend less time searching for a family lawyer to handle their divorce than they do shopping for a new car, home, or apartment," says Lester Wallman, a partner in the New York family-law firm Wallman, Greenberg, Gasman, & McKnight and the author of Cupid, Couples & Contracts: A Guide to Living Together, Prenuptial Agreements, and Divorce (Mastermedia). "It's shocking when you consider that their future, money, property, and the custody and support of their children may be forever affected by the quality of the divorce lawyer they choose."

Finding the right divorce lawyer is critical for your divorce and you can begin your search by talking to those you know: ask for recommendations from a close friend or family member (your friends and your family -- not your spouse's) who have been through divorce themselves. If you can't get any personal recommendations, there are professional organizations that offer family-lawyer referral services, such as The American Academy of Matrimonial Lawyers (312-263-6477, www.aaml.org), The American Bar Association -- Family Law Section (800-454-8432 or 312-263-6477, www.abanet.org), and The Law Society of Upper Canada (800-268-8326 or 416-947-3330, www.lsuc.on.ca). Ask for two or three names of local lawyers who devote their practice to family law. Also, check your phonebook for the number of your local Bar Association.

Visit a library and take a look at the "Martindale-Hubbell" -- a seven-volume compendium of lawyers categorized by state and ability. Read the biographies, and make sure the attorneys you select specialize in matrimonial or family law. You could also visit a courthouse in order to see lawyers in action; call the clerk's office to obtain dates and locations of cases and hearings.

"How much" lawyer do you actually need? The best (and most expensive) litigator money can buy, or someone who can handle the whole thing quickly and inexpensively? Is it important to find a lawyer who's "compatible" with you: one who understands and respects your thoughts and feelings about your divorce? Or can -- and more importantly, should -- you handle your divorce yourself?

Your answers to these questions will be determined by your own unique circumstances. Here are some basic guidelines to help put you on the right track.

Finding a divorce lawyer

Choosing which divorce lawyer will represent you may be the most important decision you'll make during your divorce proceedings. As in any profession, there are good divorce lawyers and bad divorce lawyers. It's up to you to do your homework -- and to ask the right questions -- to determine which group your family attorney falls into.

Look for someone who:

  • Practices matrimonial or family law. A divorce lawyer who specializes in taxation, even if he or she's your best friend, isn't going to be much help to you.
  • Can work with other professionals. As a family-law attorney, he or she must be able to work with accountants, appraisers, and other expert witnesses to track down and evaluate assets
  • Has a lot of experience. If your divorce lawyer is fresh out of law school, make sure he or she has an experienced mentor at the firm -- one with an excellent knowledge of relevant divorce law -- to go over his/her cases.
  • Is a skilled negotiator. If your case can be settled without a protracted court battle, you'll probably save a great deal of time, trouble, and money.
  • Is firm. If you do end up going to court, you don't want your divorce lawyer to crumble at the first obstacle.
  • Is reasonable. You want someone who'll advise you to settle if the offer is fair, and not to have the case drag on and on to satisfy your need for revenge.
  • Is compatible with you. You don't have to become best friends, but you must be comfortable enough with your lawyer to be able to tell him or her some of your deepest, darkest secrets. If you can't bring yourself to disclose information relevant to the case, you'll be putting your lawyer at an extreme disadvantage. "It's important to find a family lawyer you can work with -- one who's on your wavelength," confirms James C. MacDonald, a partner in the family law practice of MacDonald & Partners in Toronto and founding chairman of the national family law section of the Canadian Bar Association. Your family lawyer isn't your therapist or confessor, but he or she does need to be aware of all pertinent facts in order to do a good job for you.
  • Is totally candid. Your lawyer should be up-front about what he or she thinks your divorce will cost, if there are holes or any problems with your case, and whether or not you have any aces up your sleeve.
  • Is not in conflict with your best interests Don't share a divorce lawyer with your spouse; don't hire your spouse's best friend (even if he's a friend of yours, too), business partner, or any member of your spouse's family to represent you -- even if you're on good terms with them. Aside from the obvious conflict of interest involved, you'll have created enemies -- and probably a whole new family feud -- before your divorce settles.
  • Is more than a pretty face. This may seem painfully obvious, but given our frail human nature, it bears noting here: don't choose a lawyer based on physical attractiveness. You're looking for competence -- not for a date on Saturday night.
Choose a Specialist

In each divorce, different issues come up that require special attention; so it is best to find a divorce lawyer who concentrates on the specific issues that may arise in your divorce. Here are some examples:
  • Custody. If you believe custody of your children will become a major battle, then going to a lawyer who concentrates on custody issues is very important. "Finding a lawyer that has an expertise in child custody will help achieve the most favorable outcome," says Susan Cartier, a partner in the Connecticut firm Cartier and De Matteo. "You want someone who has the experience and a good working knowledge of the law surrounding custody. Without this knowledge of the specific legal process the children involved could be negatively impacted."
  • International. If your divorce deals with out of state/country property, or if there is a threat of having your child removed from the country, hiring a family lawyer who knows international divorce law and policies is essential. "Not every lawyer can handle cases such as these," says Rahul Kishore, a Maryland divorce lawyer who regularly handles international cases. "You need someone who has the experience and the knowledge of other countries' divorce laws and views on custody and property."
Little firm, big firm

You also need to decide whether you'd like to be represented by a sole practitioner or a full-service family-law firm. Your choice will be partially dictated by your spouse's choice: if the divorce is relatively easy and friendly, you can probably agree on what kind of representation you need. If the divorce is very bitter; if there are children, money, or large assets at stake; or if your spouse is just plain "out to get you", consider hiring a "top gun" -- whether that be a well-respected individual or a team of lawyers at a prestigious firm.

The main advantage to hiring a sole practitioner is that you know exactly who will be working on your case; in bigger firms, the lawyer you speak to initially may not be the one who does the bulk of the work on your case. You will get to know your sole practitioner well, which should make office visits or phone conversations a little more comfortable.

"Many people prefer to have this kind of one-on-one relationship with their lawyer," says Rahul Kihsore, a Maryland divorce lawyer and co-author of Getting Your Fair Share (Crown Publishers). "Divorce is a very personal and psychological thing. Having a closer connection with a family lawyer allows a client to feel comfortable and offers him or her the chance to give input." A sole practitioner will usually be less expensive than a big family-law firm, although some top practitioners can be quite pricey.

If you're looking for a divorce law firm to represent you, remember that they come in all types and sizes. A firm can be three lawyers and a few paralegals, or 100 lawyers and more than 20 paralegals. You can hire a general practice firm that deals with various areas of the law and has a smaller department that handles divorce and family law, or a matrimonial firm that handles only matrimonial matters. "In this world of specialization, it can be essential to have an attorney or firm that deals with family-law cases on a regular basis," says Bernard Rinella, a Fellow of the AAML and a partner in Rinella and Rinella, one of the oldest matrimonial law firms in Illinois. "A general practitioner wouldn't know the everyday workings of divorce law that a matrimonial attorney would deal with daily."

Donald Schiller of Schiller, DuCanto and Fleck, the largest family-law firm in the US, agrees. "In a divorce, there's a lot at stake and a lot of issues. Having a family-law firm allows a client to have a huge fund of knowledge and several divorce lawyers to back them up on every aspect of divorce law."

But most importantly, Cartier stresses the importance of looking at your individual divorce lawyer's ability handle your case. "Size doesn't always matter," she says. "If your particular lawyer listens to your wants and needs and does all he can to achieve them, it doesn't matter if he is with a law firm of two or of fifty."

The initial interview

The outcome of your divorce proceedings will change the course of your life forever, so invest the time and money to find the lawyer who will do the best job for you. "When looking for a lawyer, you should interview two or three prospective professionals before deciding who'll represent you," advises Rahul Kishore a Rockville City lawyer and the former president of the National Conference of the Women's Bar Association. Remember: it's your responsibility to retain a lawyer who's not only good at his or her job, but one whose personality and outlook are compatible with yours.

Here are the questions you should ask during your initial interview:
  • Do you practice family law exclusively? If not, what percentage of your practice is family law?
  • How long have you been practicing?
  • What is your retainer (the initial fee paid -- or, sometimes, the actual contract you sign -- to officially hire a divorce attorney)? Is this fee refundable? What is your hourly fee?
  • What is your billing technique? You should know what you're paying for, how often you will be billed, and at what rates.
  • If your spouse has retained a lawyer, ask your prospective lawyer whether he or she knows this lawyer. If so, ask:"Have you worked with him or her before? Do you think the divorce lawyer will work to settle the case? And is there anything that would prevent you from working against this lawyer?"
  • What percentage of your cases go to trial? You actually want to choose a family-law attorney with a low percentage here -- a good negotiator who can settle your case without a long, expensive court battle.
  • Are you willing and able to go to court if this case can't be settled any other way?
  • How long will this process take? (Again, the answer will be an approximation.)
  • What are my rights, and what are my obligations during this process?
  • At a full-service firm, ask who will be handling the case: the lawyer you're interviewing, an associate, or a combination of senior and junior lawyers and paralegals?
  • Should I consider mediation? Ask if your case -- at least in the initial stages -- might be a good one for mediation. If there has been violence in the relationship, or one spouse is seriously intimidated by the other, this may not be a viable alternative.
  • Should I considerCollaborative Law? "In a collaborative practice, the clients themselves conduct settlement negotiations with their lawyers acting as advisors to the clients instead of taking charge of the process," explains MacDonald, who is the founder and current president of the Toronto Collaborative Family Law Group. "Each party has to find a collaborative lawyer to represent him or her." MacDonald recommends Collaborative Law for most divorce cases -- except when violence or vengeance is involved.
  • What happens now? Do I need to do anything? And when will I hear from you? Finally, if there's something you really need to know, or if you don't understand something the lawyer said, don't be afraid to ask for clarification. "There's no such thing as a stupid question," says Susan Cartier. "If there is something you want to know, ask. It's your life on the line." Bring a list of questions with you to the initial interview; that way, you'll know if all of your concerns have been handled.

What your divorce lawyer needs to know

You'll also need to provide information to your prospective lawyer during your initial interview. The better prepared you are for this meeting, the more you'll get out of it. Just as you're searching for the ideal divorce lawyer, the lawyer is hoping you'll be the ideal client: calm, businesslike, competent, and well prepared. "Ideal clients are organized; are willing to work together with me to attain their goals; and are willing to listen to my advice, pay their bills on time, and settle if possible, instead of tapping into their children's college fund," says Soloman.

Of course every case is unique, but the following checklist will give you an idea of what information your lawyer is looking for during your first meeting. You need to disclose:
  • Why you are seeking a divorce. What caused your breakup? Are you sure you want to end the marriage, or is the visit to a lawyer meant to be a wake-up call to your spouse? "You need to be sure that you actually want a divorce," says Wildstein. "If you're secretly hoping for a reconciliation, then you and your lawyer are working towards different goals."
  • Personal data. Bring as much personal data about you, your spouse, and your children (if any) as you can gather. Write down your names (maiden name too, if applicable); your home and work addresses and telephone numbers; your ages and places of birth; your Social Security Numbers; your states of health -- both mental and physical; your Green Card(s) and immigration papers (if applicable).
  • Facts about your marriage.? When and where did you get married? Did you sign a prenuptial agreement? If so, bring a copy of the agreement with you. Have either of you been married before? Bring the details of your previous divorce(s) with you.
  • If there was there any abuse in the marriage. Your lawyer will need to know if you were ever a victim or a perpetrator of abuse. Despite the fear you may have revealing this kind of information, your silence will prevent your lawyer from doing his or her job in representing you. Knowing about the abuse also allows your lawyer to acquire orders of protection for you and your children.
  • Whether there will be custody or access issues. Do you have children, and are there issues that will involve them -- such as custody, joint custody, and access? "If so, be prepared to discuss these issues in some detail on your first visit to your lawyer," says Philip Epstein, senior partner at Epstein Cole in Toronto. "This is more important than financial information, because until you know what's happening with regard to the children, you can't plan anything with respect to your settlement." Kronby agrees, but notes that "some couples are able to defer custody issues and get the financial issues out of the way first."
  • Financial information. What assets and debts did each of you bring into the marriage? What are your incomes and what are your expenses -- jointly and individually? What are the names and addresses of your employers? How much money do both of you have invested: in the bank, the stock market, etc.? Has either of you invested in insurance or a pension plan? What property do you own (a house, car, boat, income property, etc.)? Was the property purchased before or after the marriage? Do you have a mortgage, and how much is still owed? Prior to your appointment, create a budget detailing how much you spend every month on items such as housing, food, clothing, personal grooming, gifts, vacations, etc. If you have children, and expect to be their primary caretaker, make sure you factor their costs into your budget.
  • Legal documents. Bring copies of prior or pending lawsuits, bankruptcy suits, judgments, and garnishments.
  • What you want to get out of your divorce. Be very specific about your goals in terms of division of property and other assets, custody and visitation, and support payments. Telling your lawyer that "I just want my fair share," or "I want to take that cheating louse to the cleaners!" will not help him or her to assess your case.
Should I handle my own divorce?

People are attracted to do-it-yourself (also known as Pro Se, which is a Latin phrase meaning "for yourself") divorces because they are supposed to save both time and money. Unfortunately, most divorces are relatively complicated -- involving complex property transfers and their tax implications; plus the issues of support, custody, and access if children or an unemployed spouse are involved. You'll also have to be able to prove grounds for your own divorce.

If you want to try the pro se route, there are some resources available to help you. Check with your local community college, adult education center, or community center to see if they offer classes on divorce. There are some low-cost legal clinics that will fill out your forms and review your separation agreement to make sure the paperwork is complete before it's filed with the court.

"Lay people can get themselves into more trouble when they try to handle their own divorce because they don't know the procedural ropes, where to file, etc.,"

If you do create your separation agreement yourselves, both you and your spouse should each retain an independent lawyer to check all papers before signing -- even if the divorce is "friendly" and you think your agreement is very straightforward.

A quality do-it-yourself kit or book will provide a good introduction to the divorce process. If your divorce is very simple and completely uncontested, a kit may be all you need. But if things turn nasty, or you suspect your spouse is trying to trick you into agreeing to a settlement that really isn't in your best interests, you'll need to consult a lawyer -- who may have to charge you even more money to undo what you did prior to retaining him/her.

Wednesday, May 8, 2013

Separation Top Ten Tips

Top Ten Tips

Here's the inside scoop on how to save on legal fees in a divorce.

When it becomes clear that your marriage is over, and no amount of pretense or counseling can fix what is broken, you'll need to line up an attorney to represent you in the divorce process. At this extremely vulnerable time, you'll be placing your life and your future in your attorney's hands, and you'll add one more worry to your ample list of stresses -- the high cost of divorce!

Attorneys usually charge an hourly rate calculated in 15-minute increments -- even if the service takes only a minute or two of his time. That "quick little call" you make to your lawyer could cost you from $50 up. If you succumb to the temptation to call every day, your monthly charge just for phone calls can run well over $1,000. If the process drags on for a year, you'll pay $12,000 and up just for those brief daily calls!

Here are ten simple steps for saving big bucks over the course of separation and divorce; some of the tips are general and can be applied to other legal situations as well.

1. Saving money on legal fees starts before you have your first attorney interview. Round up all the personal referrals you can from friends, family, colleagues, and neighbors who were happy with their own divorce lawyers. Ask if the client's calls were returned in a timely manner, or if sustained nagging was required to get a call-back. The bill should run far less for a focused, efficient attorney than it would for a disorganized one. Did that attorney stall or delay the process? Did she favor lengthy debates between opposing attorneys? Was her billing accurate, detailed, and free from "fluff?" These factors can have a major effect on the final cost.

2. During your initial telephone interview with the attorney, ask what he charges and how it's calculated. Is it a flat hourly fee charged in 15-minute increments, or is it figured by some other method? Ask if he requires an initial retainer, and if so, how much for your situation. Complex divorces often call for a more substantial amount. Tell him that you want to keep the costs to a reasonable minimum and ask if he'll help you to do so.

3. Don't discuss the weather, the baseball playoffs, or your mother's petunias: chit chat is expensive. Even though she's holding your future in her hands, and there's a natural inclination to talk to your attorney as a friend, socializing can become expensive. Allow a brief time to reconnect either in person or over the phone, then get on with business. By the same token, if you have a gabby attorney, learn how to gently but firmly bring her back to the business at hand.

4. Although you may find a genuinely sympathetic attorney, don't use him as a counselor. Go to a licensed therapist. An experienced mental health professional will be more effective, will cost less per hour, and will help you deal with the emotional peaks and pits that continually throw you off balance. In addition to that, you'll have developed a relationship with a therapist who can guide you through the rocky recovery period after the divorce is granted.

5. Don't ask for special paperwork. Whenever possible, run your own copies, take notes when you talk to your attorney on the phone (so you don't have to call him later to double-check on the conversation), and look up any phone numbers and addresses he may need in working up your case.

6. Don't complain about your soon-to-be-ex unless it directly applies to the current procedure. This is so very tempting during divorce (and subsequent custody and/or maintenance hearings)! You feel compelled to point out how moronic and venal your soon-to-be-ex is, and by implication, how much better a human being you are. Resist the urge. It's both pointless and expensive.

7. If you invite your attorney to lunch (or vice-versa), find out first if it will be "on the clock." There may be times when a luncheon meeting is most convenient for both of you -- just be sure you know the ground rules going in. If you'll be discussing business, have a pen and paper with you so the lunchtime information doesn't disappear with the last cup of coffee. Be especially vigilant about idle chatter if you're paying attorney's fees for the privilege.

8. Ask for specific ways you can save on lawyer hours, such as doing your own research, filling out forms, or mailing notices. You just might be able to shave a few hundred dollars off the final tab by doing some of the routine clerical work yourself. In a long, drawn-out divorce, ask the lawyer periodically if there are any other aspects you can take care of yourself to save money.

9. Consider hiring a skilled mediator to help you and your spouse arrive at mutually agreeable solutions to your financial and custody disagreements. Mediators are specifically trained to help you resolve your problems together, and the cost will probably be less that you'd pay for the opposing attorneys to argue with each other. (You'll still need to retain your own lawyer to check any agreement before you sign it, however.) Mediators also allow you to employ cooperation and compromise in arriving at a settlement agreement, which leaves far less emotional scarring than the adversarial attorney-to-attorney method.

10. Do your own Discovery. Discovery is basically pretrial disclosure of pertinent facts and documents, including financial figures, by one or both parties in a divorce or other legal process. It can involve a fair amount of sleuthing time, so you'll be money ahead if you ferret out the hard-to-find information (like hidden assets), rather than relying on your attorney to do it all.

One last word about maintaining control of your legal expenses: request itemized monthly bills from your attorney. Knowing just how your legal dollars are being spent can be the most effective aid in helping you keep them to a reasonable minimum!
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Linda C. Senn is author of Your Pocket Divorce Guide and co-author with Mary Stuart, M.A. of The Divorce Recovery Journal.
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Rahul Kishore - Best Divorce Lawyer in Maryland Specializes in Divorce, Child Custody Support, Alimony, Family Mediation, Collaborative Divorce, Divorce Property Division and Divorce Asset Division. He successfully handle large asset based divorce cases and also offer a Free Consultation. Please call us now at: 301-715-3838 or visite our web www.maryland-lawoffice.com

Taming Divorce Related Anger

Anger not faced doesn't go away; it is redirected. A "divorce hangover" begins when anger becomes directed toward whatever or whomever (including yourself) you consider responsible for the divorce. Here's how to release your divorce-related anger.

Divorce is a profound, life-changing experience. It's painful, it's confusing, and it turns your world upside down. But at some point, it should be over.

If it's not -- if the pain, anger, resentment, depression, or emotional confusion seem to go on forever -- then you're in the clutches of a divorce hangover. A hangover is an ongoing connection with your ex-spouse or former life that keeps you agitated or depressed, unhappy, and stuck in the past.

Anger is the core emotion of divorce. The hangover begins when clean, honest anger at the losses and changes of divorce is converted into a secondary, once-removed anger -- usually directed toward your ex-spouse, his or her new partner, their children, or even your new partner.

Anger Once-Removed

The losses and changes are so painful that many people will do anything to avoid feeling them. When you don't face these losses directly, you don't experience the natural anger that they create.

Anger not faced doesn't go away; it is redirected. A divorce hangover begins when anger becomes directed toward whatever or whomever (including yourself) you consider responsible for the divorce. It becomes a protective device to keep you from feeling the pain of all that loss.

Grant had loved Jackie since high school and built his whole life around their relationship. When she told him after two years of marriage that she had fallen in love with Patrick and was leaving, Grant was devastated. He simply couldn't face the fact that his great love didn't love him anymore. He had lost the most important thing in his life, and on top of everything else, he felt like a complete fool.

Instead of experiencing and expressing his anger at those losses, he redirected it toward Jackie's new lover. Patrick became the villain, and Grant could act out against him with threatening phone calls and even a fistfight, rather than deal directly with his feelings about all that he had lost.

Clean Anger

Divorce is a kind of death; it is healthy and natural to mourn the end of a marriage and the loss of expectations, illusions, and false hopes -- and an important part of that grieving process is anger.

In On Death and Dying, Elizabeth Kuebler-Ross cites the five stages of grief as denial, anger, bargaining, depression, and acceptance. When you finally admit your loss and experience that pain, you are likely to be furious. If you let yourself experience the clean, raw, natural anger of grief, you can avoid a hangover.

You have a right to be angry, and to express your anger. It's not fair that your marriage is over. You did the best you could and it didn't work out. You may feel like railing against fate, "I set out to have a good marriage, I did everything I could, and I wanted it to work out!" This kind of anger resolves into acceptance, and has an end. At some point, it's over.

If you can't let yourself grieve the end of the marriage, then it's not really over for you. Some part of you can still pretend those losses never happened, or that you'll wake up someday and everything will be back where it was. It's not that you haven't lost something; you just aren't telling yourself the truth about it. You're living in an illusion -- frozen in time, stuck back in the marriage, and unable to move forward.

Sharon said, "As long as I didn't cry and scream about losing the house, I felt I hadn't really lost it somehow. Of course, I had lost it. We'd put it on the market, and other people had bought it and moved in. But part of me still lived there, even though it no longer had anything to do with my real life. I felt kind of funny and had to push myself a little to let go and bottom out, to scream and cry about losing that beautiful, beautiful home. But if I hadn't, I'd probably still be 'living' there."

Tricky Business

Hangover anger is slippery. You can't control it, you can't release it appropriately, and sometimes you can't even find it until it suddenly erupts.

"I just couldn't get rid of the anger," Kevin said. "Whenever I thought about how she took me to the cleaners in the settlement, I sat down and fired off a scathing letter to her. I couldn't figure out what else to do, even though it usually made me feel even worse."

Since Kevin's anger was directed at his ex-wife rather than at its true source -- the losses and changes that had turned his life upside down -- it never was released. It was a loose cannon that never stopped firing, but never hit the target because it was pointing in the wrong direction.

A Perfect Target

The most frequent target of once-removed, hangover anger is your ex-spouse: the person without whom there would be no loss or change, the person who seems to be standing between you and your ability to recapture the past. That person -- or his or her new mate -- becomes the villain, the one responsible for all the hurt and pain.

This is not a conscious decision. Usually you are not even aware of redirecting the anger, but it shows up in a variety of ways. Here are a few:
  • Revenge: Carolyn had tried to ruin her ex-husband in the financial settlement, and their court battle became extremely ugly. "I'd lost my marriage and somebody was going to pay for it. I knew -- somewhere very deep inside me -- that he was hurt, angry, and bewildered, too. But I couldn't have cared less. I was fighting for my life, and I went after him with both barrels. I made that guy pay for what he'd done to me and the kids. Of course, he came back at me with four barrels and two lawyers.
  • Blame: Frank, who had left his alcoholic wife, said, "I kept thinking of her in that house and obsessing that if it weren't for her damned drinking, I could be living there, too, and we would be happy."
  • Sabotage: Jerry paid all his bills on time except for one -- his alimony check to Ellen. He knew that Ellen relied on his check to make the mortgage payment and that the bank charged her a late fee when it didn't arrive on time. Sometimes he "forgot" to sign the check so that by the time it was returned, signed, and sent back, another week and a half had passed. (He admitted that he smiled as he licked the envelope.) He told me later, "I felt cornered, and so I attacked. Ellen was the easiest target."
  • Forced and Inappropriate Control: Betty told me, "I just wanted to fight my way out of all the upheaval and disruption, to find some firm ground to stand on, to somehow say, 'This is who I am. This is where I am. This is what I'm going to do.'"

    One way that Betty made her stand was by refusing to drop her three sons off at Ted's office on Friday nights. This meant that he had to drive an hour out to the house, and an hour and a half back to his apartment, after a 12-hour work day (he worked overtime to provide more child support). Her lack of cooperation irritated him, started his weekend with the boys on a sour note, and aggravated Betty's boyfriend because their Friday nights out couldn't begin until 10:00. And when they finally did get together, she spent most of the evening complaining about Ted.
Anger with a Life of Its Own

Hangover anger takes on a life of its own. It doesn't even have to be triggered; it's just there -- always and everywhere. It becomes your baseline point of view, the fundamental attitude from which you relate to other people and the world.

David's anger had taken on such a life of its own that his ex-wife, Sandy, didn't have to do much to make him furious. He lived in a perpetual state of turmoil. In his mind, she was the source of all his pain, the arch-villain who was out to make him miserable.

When she actually did do something -- like take him back to court -- he went to town, retaliating by telling their friends ugly stories about her and being late with alimony and child support.

Hangover anger so sapped his energy that even his career was suffering. In our initial counseling session, he said, "My whole life is in shambles. Now even my career is up for grabs." Throughout the discussion, he kept talking about "that damned woman and that damned divorce."

David saw that he had not wanted to face the loss of his children and home, so he had misdirected that anger toward Sandy and life in general. He was no longer angry at people or things; he was simply angry.

The Ultimate Release

How can you tell if yours is the clean, natural, healthy anger of grief or the self-destructive anger of the divorce hangover? The clean anger of grief cleanses your spirit and goes away. Divorce hangover anger persists and turns ugly, attacking both the people you hold responsible for your bad feelings and innocent bystanders. If you're ever in doubt, ask yourself how far removed the anger is from its true source -- the losses and changes. The farther removed it is, the less healthy it is.

Peg was chronically furious at her ex-husband because he was not giving her enough money. She realized her anger was the result of being broke after the divorce and not yet being able to find good work. The anger at her ex was futile (he was a disabled veteran) and kept her in her divorce hangover. When you recognize how you have misdirected anger over loss and change into anger against your ex-spouse or others, a huge portion of that anger simply disappears.

The anger that remains is much easier to manage because you understand it. You know how it works, what it's trying to do, and where it's likely to show up. You're always a step ahead of it.

There's no magic formula to letting go of anger. It is very simple. You have to want to give it up -- notice when it raises its head, and let it go consciously. You have to choose being happy over being right. The clearer you become about where your hangover anger lies, how it works, what it is protecting, and what it is costing you, the more quickly and easily it dissolves. The exercises in "Releasing Anger" at the end of this article will take you through the process of releasing hangover anger.

Unmask your Hangover

Hangover anger has many clever disguises. If you recognize it, it will start to weaken and disappear. It has to stay hidden in order to survive.

The Cover-Up
Any good disguise presents illusion as reality, so it really does feel as if you're angry at the other person and that your anger is justified.

Karen and Charles were divorced five years ago, but she keeps dragging him back into court to revise the financial settlement. Charles says, "I don't understand it. No matter how much I give her, it isn't enough."

When they were divorced, Karen simply couldn't deal with the loss of their beautiful home, her standing in the community, and the connection with his family, with whom she was very close. Taking Charles back to court again and again gave her an outlet for the anger and also maintained her connection with him, with their marriage, and with his family.

That's not how it felt to Karen, though. In her mind, she was doing it so that justice would be done and she would get what she deserved. He had promised her a certain lifestyle and then broken that promise. To her, the anger had nothing to do with loss; it was a question of right and wrong.

Perhaps Karen was right and had a perfectly good claim on everything she was demanding, but she was ignoring her own responsibility in the marriage and her participation in the divorce, and keeping herself in the role of a victim. She was also ignoring the present reality, which was that she was no longer married to Charles. As long as she overlooked those two things, the hangover would continue.

Your anger and outrage may seem as real and justifiable as Karen's righteous indignation at Charles. The giveaway is how you feel. Are you happy? Are you relaxed? Are you spending energy on the old relationship, or are you getting on with your life? Are you accepting your own responsibility in all this? Are you accepting life as it is, or pretending it's how you would like it to be?

Masks

Everyone masks the hangover differently, but because they are unconscious, these masks are often hard to pinpoint.

If you have a divorce hangover, you have a mask. Without the mask, you'd have to face the pain, the anger at your losses, and your responsibility for your life as it is now. If you did that, you wouldn't have a hangover.

These are a few of the many masks a hangover can wear:
  • The Sexual Mask: Bill couldn't say enough bad things about Cheryl to their friends, but was aggressively sexual when they did "run into each other." This set up a "star-crossed lovers" drama between the two of them, which they both enjoyed playing out to the audience of their friends. "What a great couple they made! What passion! What a tragedy it didn't work out!" This drama kept them from having to admit that their marriage was over or feeling the pain of that loss. It also kept them both out of other relationships.
  • The "Poor Me" Mask: Lisa has been depressed ever since her divorce from Saul two years ago, but whenever he's around, the depression becomes much worse. When he comes to see the kids, she greets him at the door with a martyred look, a sigh, and perhaps a "reluctant" tear in her eye. She doesn't know how she is going to make ends meet this month with only that small amount of child support, and Tommy's extra soccer expenses made the burden worse. She's afraid Samantha's "I hate boys!" stage has something to do with what her father did to her. She supposes it doesn't matter that she's too old for another relationship or that men no longer find her attractive; she's just trying to make ends meet and hold herself together for the sake of the children so that they, too, won't be ruined by the divorce.
  • The Crazed Bitch/Bastard Mask: Boyd and Dayna have been the original Bickersons since their divorce and just missed being cast in Hollywood's divorce hangover epic, The War of the Roses. She tries to bleed him with a new financial settlement almost every year. When this happens, he delights in revealing the details of his other relationships, even when the children are present. Last Thanksgiving, he sent her a dozen dead roses. When he came to pick up the children later that afternoon, she threw cold, leftover gravy on him.

    Recently, they found themselves at the same cocktail party. Loud, ugly words were exchanged, and before the evening was over, she had drawn blood with a fingernail slash to Boyd's new wife's cheek. These are very powerful emotions, but it's not as simple as it seems. If Boyd and Dayna's problems were strictly with one another, the anger would release after it was expressed. The strength of their hangovers suggests how deep their losses were.

There are as many masks as there are people with divorce hangovers, and you know best what yours looks like. When you can get beyond the mask to what you're really feeling, you begin dealing with reality rather than illusion.

The Faces of Anger

Anger shows up differently in assertive and non-assertive people, and can turn either outward toward others or inward toward oneself.

Assertive people tend to act out. They move, but they move in circles. They call in the middle of the night, never miss a chance to be sarcastic or critical, spend hours figuring out how to thwart the other person, and may use the children or money as tools to "get" their ex-spouse. They send their kids to the other parent's house with messages like: "Dad, Coach says I have to have a helmet to play hockey and Mom says she can't buy it." They may also instruct their children to say hurtful things to the other parent's new mate.

The ultimate divorce hangover for this personality takes the form of actually killing the ex-spouse. All too often we read of the tragic murders of ex-spouses and even children and other relatives by a crazed and enraged ex-spouse.

Less assertive people are likely to be depressed, which is anger turned inward, the "flight" part of our instinctive "flight or fight" reaction to fear and pain. Rather than acting out, they tend to withdraw and run away. This is fine for a while if you just need time alone to heal, but can become destructive if you hide because you never want to risk being hurt again.

Depression is anger bottled up inside. Life seems filtered through a screen, without spontaneity or expression. But even depression can be used to punish the other person if he or she can't get you to talk, smile, or communicate.

Sometimes depression becomes mired in self-pity. It can be an attempt to garner sympathy and make others feel responsible for your situation, but unfortunately, it usually backfires and pushes others away.

Depression brings on inertia. Everything stagnates and deteriorates. You don't take care of the house, the kids, or yourself. Pete tried to save his marriage by working through his "emotional kinks" in therapy. Just as he felt he was making real progress, his wife, Helen, "bailed out." He was desperate to make the marriage work and pleaded with her to hang in there just a little longer, but she insisted on leaving and they agreed to be friends. There were no children and they had enough money for each of them to buy and furnish separate homes.

Helen went on with her life, devoting more time to her career and eventually becoming interested in another man. Pete knew that there was a new life out there for him somewhere, but was too afraid to explore it. He began to feel sorry for himself and lose himself in the inertia of depression.

He was angry that he had treated Helen badly during their marriage, and even angrier that he hadn't been given another chance to show her the man he felt he had become, but he was afraid to say much to her for fear of driving her even farther away. Instead, he turned it all back in on himself. He wasn't working, he slept a lot, the new house went to ruin, and he was preoccupied with the second chance he never got.

The ultimate divorce hangover for this more passive personality is suicide. Rosemary became more and more withdrawn in the year following her divorce until, finally, she rarely left the house. She made it clear that she wanted to be left alone, and so that's what people did. Everyone was so surprised when she showed up at a cocktail party one June night that no one really noticed she was dressed entirely in beige. She had always worn bold colors. She was gracious to everyone and, although she left a bit early, her friends were glad to see that she was making an effort to get out.

A week later, she was found dead from an overdose of pills. All her affairs were in order and she had even left notes covering every detail of the children's schedule, down to when their clothes had to be picked up at the cleaners. Her friends realized that the night of the cocktail party, she had come to say goodbye.

Take the first step

By deciding to heal your divorce hangover, you'll make a courageous commitment to yourself and your future. That's the first step -- and the most important one. The healing process can be a springboard to a whole new way of relating to yourself, to other people, and to life. Your success will give you the skills and confidence to handle anything that comes up. Some of the steps will be easy for you, and some will be more difficult and require more attention. Stay flexible, and stay vigilant.

Exercises: Releasing Anger

Recognizing Hangover Anger

1. What forms does your anger take?
2. Next to each behavior, write who the target is.
3. What reactions does your anger prompt from these target people?
4. If there is a reaction from them, what do you do next?
5. What do they do in response to that?
6. Does your anger produce any change?
7. Recognizing that loss and change are the causes of your anger, rank the ones that anger you most.
8. Think of ways, post-divorce, that you can bring some of these things back into your life without harming anyone.


Unmasking Hangover Anger

1. Which mask(s) do you wear to act out your hangover anger? The sexual mask? The "poor me" mask? The crazed bitch/bastard mask?
2. Is your anger more assertive (directed outward) or non-assertive (directed inward)? Give examples.
3. Do you see a relationship between your hangover mask and the form your anger takes? What is that connection?

Tuesday, February 19, 2013

When your ex won't pay

We've all read the dismal stories about non-custodial parents and ex-spouses who are defaulting on their child-support payments. But has anyone thought to ask why these people aren't paying?

You read about them every day: so-called "Deadbeat Dads and Moms" who refuse to pay child support even though they're living in the lap of luxury. There they are, jetting off to Hawaii again without a thought for their offspring who go to school hungry and in ragged old clothes. But how accurate is this picture?

"The true 'Deadbeat' parent is quite rare," says Nancy Caruso Pascucci, a Chicago mediator, attorney, and an adjunct professor at the DePaul University College of Law. "If the non-custodial parent can't pay, there's usually a good financial reason for it: he or she has lost a job, agreed to more than he or she could really afford to pay in the settlement, or has remarried and has a new family to support."

Pascucci cites the example of one of her clients who -- before he hired her -- agreed to pay 70% of his net earnings to his ex for child support, and now doesn't have enough to live on. This situation is obviously unfair, but it's part of his legal separation agreement and he has to go back to court to try to get it changed. To avoid getting yourself into such a fix, Pascucci advises you to consult an attorney before signing any documents. "Your attorney can go over the ramifications of an agreement before you sign it," she says, "so you'll know exactly what you're agreeing to."

"Large, frequent doses of media attention, legislative scrutiny, and public outrage have made child support the most debated and least understood aspect of family law," writes Chicago attorney Jeffery M. Leving in his excellent book Fathers' Rights. "The child support system is not working -- not for parents, not for children, and not for society," he concludes.

Gene is a 35-year-old man who has been wrangling with his ex-wife about child support for and access to their eight-year-old daughter, Katy, for the past three years. "I'm in and out of court all the time," he says bitterly. "I've already spent more on legal fees than I would have had to spend to support Katy to age 18 -- about $200,000." Gene stopped paying child support 15 months after his ex, Mary, stopped allowing him to see their daughter. "She hauls me into court regarding payment, and I haul her into court regarding access. I was a great father -- she only denies access to yank my chain. Do you really think it's in Katy's best interests that she grow up without knowing her father?" Probably not -- but is it in her best interests to grow up without adequate financial support, either? Studies show that the children who adjust best to divorce are those who remain in close contact with both parents -- as long as those parents are not in constant conflict. So assuming that Gene and Mary can agree to resolve their issues with each other -- through counseling, therapy, or mediation, for instance -- Gene is correct in thinking that it would be in Katy's best interests to have regular, positive contact with her father. But until that happens, Gene must separate his anger at Mary from his obligations to Katy and start making child-support payments again.

Although some divorcing parents try to combine the two issues, the law says that child support and access are independent covenants. And rightly so: otherwise, an abusive parent could refuse to pay support unless the custodial parent allowed their child to spend time with him or her.

Yesterday's unresolved issues fuel today's conflict

Old arguments, old hurts, and anger from the past can cause couples to behave like Gene and Mary -- each of whom is completely uninterested in trying to see things from the other's point of view, and each would rather spend the next decade fighting in court than admit any responsibility for creating and maintaining the deadlock they're in now.

"Most people think that their opinions are the only valid ones to hold: they're totally right, and the other person's totally wrong," says Chicago attorney Forrest Bayard. "In a divorce, a parent can become more committed to getting his or her own way than to being fair to the children."

Bayard asks divorcing parents to create future goals for their families, and then to ensure that their actions are consistent with reaching those goals. For instance, a non-custodial parent might say, "I want my kids to feel happy and secure, I want to have a great relationship with them, and I want them to stay with me on weekends and for a month every summer." Obviously, withholding child support that he or she can afford to pay is not the way to attain these goals.

We've all read the dismal stories about non-custodial parents who are defaulting on their child-support payments. Here are some new statistics that show things in an entirely different light. Recent U.S. Census Bureau data states that fathers with joint custody pay their child support 90% of the time; fathers with visitation pay their child support 79.1% of the time, and fathers with neither joint custody nor visitation pay their support only 44% of the time. What does that tell you about the probable outcome of denying your spouse access to his or her kids?

How is the money spent?

Liz does pay her child support for their two kids to her ex-husband, Joe, but she's getting increasingly upset about the way he seems to be spending it. "Last year, he took trips to the Caribbean and Europe, and our children are walking around looking like street urchins -- ragged and ill-fitting clothes and sneakers that are more hole than shoe," she fumes. "When they come to visit me, I end up buying them clothes and toiletries -- even though I'm now on a very limited budget." Liz thinks it's adding insult to injury that she's footing the bill for her ex to live "the good life" while their children do without, and she has considered withholding support until Joe proves to her that her money is being spent on the children.

"But how could I face my kids if I stopped paying for them?" she asks. Liz, who owns and runs a small retail business, works too many hours to have her kids on a full-time basis. But she has recently begun to examine her options more closely to see if there's any way she could have primary custody and still be able to support her family. "Until then, I just have to come up with coping strategies -- such as getting good-quality hand-me-downs from my sister's kids, and keeping most of these clothes at my apartment so my kids will have something decent to wear when they're with me."

Parents like Liz feel it's wrong that the courts are only interested in whether or not support is paid, and not how it's spent. "The law is quite clear," says David Frumm, a principal partner at the Chicago-based law firm of Frumm & Frumm. "Custodial parents aren't required to provide a monthly accounting for the payments they receive, but they do have a responsibility to use the funds to provide adequate care to their children." Of course, the definition of "adequate care" is somewhat subjective: for some, it's clothes on the back and food on the table; for others, it's private schools and ski vacations.

Frumm suggests that a non-custodial parent should be allowed to make direct payments to individuals or entities providing goods and services to their children -- such as school and camp fees, extracurricular activities like music or sports lessons, and even rent payments. "A non-custodial parent can request that these provisions be included in the marital settlement agreement," says Frumm. That way, if you're a non-custodial parent who doesn't want or can't have custody of the kids, you can be sure that some of your money is going to directly benefit your kids. And these direct payments will be taken into consideration when assessing how much child support you should be paying to your ex.

I can pay -- but I won't

Most experts agree that the percentage of non-custodial parents who can easily afford to pay their child support but refuse to do so because they simply don't want to comply with court-ordered support is quite low. There are as many reasons for non-payment as there are reasons to fall in or out of love. The most common "justifications" for withholding support seem to be: an effort to force one's ex to comply with court-ordered access; suspicion that the money isn't being spent on the kids; and a simple desire to anger one's ex.

If your ex won't pay, and you really have made every effort to meet him or her halfway -- by encouraging full access to the children, and involving your ex in decisions about their lives, for instance -- then there are legal remedies available to you.

"In Illinois, we use 'Orders of Withholding' to collect child support from a recalcitrant spouse," says Frumm. Served upon your ex's employer, this Order compels the employer to pay child support either to the court or directly to the custodial parent. If your ex is self-employed, you can serve the corporation with the Order.

"Another alternative is to establish a trust from which the custodial parent can withdraw funds in the event that child support isn't received in a timely fashion," adds Frumm. And the new 'Personal Responsibility and Work Opportunity Act' contains powerful new child-support enforcement measures that could increase child-support collections substantially; for more information about some of these reforms, kindly contact us on 301-715-3838."

Friday, December 21, 2012

Divorce Settlement Preparation

Are you really ready for divorce?

The eight questions you need to ask.

Your marriage is in question and you're facing a real dilemma. You may be the one who is deciding should you stay or should you go.

"I feel like I need to get a divorce and end this so-called marriage. Yet how can I be sure? Some days I feel more confident of my decision than others. A part of me still loves him, or at least I care for him. I don't think I am in love with him, but what if I make a mistake? A lot of people will be affected by what I decide. Maybe I should not rush ahead with this. That's amusing since I have been thinking about it for three years. This whole thing wouldn't even be an issue and I could forget about this divorce, if he would just change his behavior."

Or you may be the one who has just heard that your spouse wants a divorce.

"Divorce? Where did that come from? Two weeks ago we were talking about a vacation in the mountains. I had no idea our marriage was this awful? I am shocked and devastated. I have got to find a way to put a stop to this. Maybe this is all a dream and when I wake up things will be back to normal."

Most books and articles on divorce are written based on the assumption that once a couple says they want a divorce that they are ready for divorce. It is our experience as therapists and divorce coaches, who have helped many people through this process that this is in fact not the case. Usually when couples begin the divorce process, either one but more often than not, both, are not really ready for the divorce.

Divorce professionals such as therapists, mediators, and attorneys often believe that statements such as, "I've had it with him." or "My feelings have died for her," are indicators that the marriage is over. Attorneys often equate being hired for their services as an indicator that the couple is ready to divorce. This is not so.

Most couples who begin a divorce are unprepared and are often not even on the same page when they begin. It is this lack of preparedness and readiness for a divorce that either causes marriages to end prematurely or divorces to deteriorate into competitive contests.

The decision to obtain a divorce is one of the most crucial decisions a person can make, with consequences that last for years or a lifetime. A decision this important requires much greater attention than it is usually given by both couples and professionals. It is a process in and of itself. Once a couple is prepared and ready, they will sooner be able to begin their divorce by both being on the same page and this will eliminate most of the emotional and financial struggles that cause divorces to become adversarial and ruthless.

The reason many people do not even think about getting ready for a divorce is because they operate under the assumption that the sooner you can get out of a stressful situation, the better. So there is a natural tendency for people who are in difficult marriages to want to get the divorce over with as quickly as possible in order to move on with their lives. Family and friends often encourage this as well. They hurt for the family and so also prescribe to the myth that the quicker the divorce is over, the sooner everything will return to normal. But unfortunately, in most cases, just the opposite happens. Couples who make rushed decisions to leave the marriage have had no time to evaluate their feelings, thoughts, or options. As a result, they are unprepared for the roller coaster of emotions, the complicated legal system, and the many life-changing decisions that they need to make. Quite often, they make agreements which they cannot sustain, and instead of the situation getting better, they often find that they have just traded one set of problems for another. So it is no wonder that they often get tangled up in lengthy court cases and the very thing they hoped for, a quick divorce, often takes years.

This article outlines what couples need to do in order to face the numerous dilemmas that are inherent in divorce. A dilemma implies that you are torn between two choices, each of which have undesirable fearful elements. If people have not resolved their dilemmas before the divorce, they go through the process trying to manage their fear in different ways by hiding their doubt, responsibility, vulnerability, or dependency. Whether a couple is starting the divorce process or even just contemplating a divorce, they need to first identify with the following divorce dilemmas.

The Three Divorce Dilemmas

Couples who are facing the possibility of a divorce face one of three dilemmas:

1. I want the divorce, but I am not sure if it is the right decision. Since going through a divorce affects the lives of your children, as well as your lifestyle, economics, and marital investment, the pressure to make the "perfectly correct" decision is enormous. Unfortunately, there are no guarantees. The best-case scenario is to make a decision that is not emotionally based, nor driven by your ego.

2. I do not want the divorce, my spouse does. Being in this reactive place will leave you feeling out of control and a helpless victim. You will experience intense emotional devastation, as your life will be changing before your eyes without you having any say in the outcome. In addressing this dilemma, you need to ask yourself if you are clinging to staying on familiar, safe ground and to a marriage based on illusions. It is not easy to acknowledge and confront the problems in a marriage, when you are feeling so hurt by your partner. 3. I only want this divorce because my marriage is not working. If this is your dilemma, then you will want to avoid responsibility at all costs by seeing your partner to blame for the demise of the marriage. There will be tremendous preoccupation and anger about how your partner caused you to make this decision. The amount of noise generated from this blaming will be in direct proportion to your unwillingness to risk expressing any of your own fears and sadness. If this doesn't occur, the divorce proceedings to follow will be riddled with tension and conflict, and a continuation of the blaming.

The common element in all three dilemmas is fear. In the first group, there is a fear of making a mistake and being incorrect, the second will hide from it by denying that there are any problems or admitting their attachment to the familiar, and the third group will fear any accountability and softness. The result in all three circumstances will be dragging, combative, and back-and-forth divorces.

For divorce to be a collaborative and respectful process, the couple must be prepared and ready to separate their lives on all levels; legally, practically, and emotionally. To do this, each person must face their divorce dilemma by answering the eight questions below.

The Eight Questions

1. Do you still have feelings for your partner?

Many people who say they want a divorce still have strong feelings for their partner, but due to an ongoing power struggle in the relationship, there is a lack of intimacy and closeness. If this is you, it is best that you work on your relationship prior to deciding to divorce, otherwise your feelings of loss will overwhelm you and you may find yourself worse off after the divorce than you are now.

Celine had been married for seven years to a man she loved, who she considered to be a real sweet, gentle guy. However, she was very unhappy about their financial arrangement. She was the responsible one who paid all the expenses, while he seemed to be forever getting them further into debt. She was very stressed and miserable and saw divorce as her only way out of the financial strain she was under. But because of her feelings for him, she was not able to support such a decision or even set a clear boundary, for fear of losing the relationship. With the help of her therapist, Celine recognized that she either needed to either set a clear boundary and be willing to lose the relationship, or else accept that all her hassling was a waste of time.

2. Were you ever really married?

To be really married a couple must have created a relationship that included an "us" or a "we." Many people who are considering a divorce have never had a marriage that was anything more than two individuals meeting their own needs. They may have raised children and shared a home, but they participated in those activities from a competitive rather than unified position. They would ask -- "Do I want to do this or that", rather than ask "Is this good for us?" If you have not developed a genuine "we" in your relationship, this would be the time to either commit to learning how to do that or to admit that you have never really had a marriage.

Even as a therapist who works in the area of divorce, I had a very difficult time admitting that my own marriage of 14 years was in fact in name only, regardless of the years that we lived under the label of husband and wife. Our pattern was to threaten to break up every few months, and we had a daily ritual of fighting and agreements that rarely lasted more than a week. I used to joke to my wife that she needed to keep her bags packed just in case she needed to leave quickly. This pattern remained despite the numerous counseling offices we attended. It was not until I was able to acknowledge to myself that I was neither single nor married, that I was in fact nowhere, did any real change occur. We started the real divorce process two months later.

3. Are you truly ready for divorce or are you just threatening?

Divorce is often threatened, especially in heated marital arguments for the following reasons:


  • Out of anger and frustration.
  • To gain power and control over the other person, to get them to see things your way.
  • To finally be taken seriously that you want real change.
  • As a wake-up call that the marriage is faltering.

People who consistently threaten divorce lose credibility with themselves and their partner. If the person is not merely threatening, but is genuinely ready for a divorce, they can sustain the following thought in their own mind, "That I wish to close a chapter of my life, because I am at peace with the fact that there is no more that I can do or give to this relationship." They will discuss this appropriately with their spouse without any blame.

4. Is this a sincere decision based on self-awareness, or is it an emotionally reactive decision?

To be ready to divorce your partner means being able to make a clear, unemotional decision that you can support over time. Divorce means being able to let go of all strong emotional attachments to the other person, the loving ones as well as the hostile and hurtful ones.

Emotionally charged decisions do not last and, if acted on, do not resolve the underlying problem. People who divorce out of anger stay angry even after the divorce is over.

A woman came to see me as her divorce coach after she had been divorced for five years because she was still struggling with the effects of her divorce. Her problem was that she was still feeling rage toward her ex-husband and found her self hating him on a weekly basis. I said to her, "It sounds like you are still married." She insisted that this was incorrect due to the hatred she had for him. I responded that the hate she was experiencing essentially reflected a great passion toward him despite her hateful label, which I doubted any current man could match. I stated that only someone who is married could have such a passion. From that moment on she began to emotionally detach from her ex-husband and work towards, with the help of the coaching, a real divorce.

A statement that would indicate that you are making a sincere, rather than an emotionally reactive, decision is, "I acknowledge that you are a person in your own right with your own personality, hopes and dreams, I can respect you for that, but I no longer want to be married to you." To be ready for divorce is to have a lower emotional attachment to the person you are separating from; otherwise, the divorce process itself will be roller coaster of intense feelings, including anger, distrust, and hurt.


5. What is your intent in wanting a divorce?

Any agenda, other than ending the marriage, is an indication that you are not ready to divorce. If you are hoping that through the divorce the other person will change and start treating you better, realize how much they have lost or pay for how much they have hurt you, you are getting a divorce for the wrong reason. Divorce has no power to right wrongs nor change people's hearts and minds. Divorce can only do one thing, end a marriage, and in so doing free each person to make new attachments to new people.

6. Have you resolved your internal conflict over the divorce?

Everyone who goes through a divorce is conflicted. People can feel guilty at the same time as they are sure that they want to end the relationship. Or they can feel betrayed and at the same time recognize that their life will be better once they are out of the relationship. Recognizing the conflict and owning that different parts of you will be struggling with the impact of divorce, at different times, is part of the process of getting ready for divorce.

Rick was having the hardest time deciding what to do about his marriage. For the longest time, he claimed that he was confused, conflicted, and torn. He couldn't seem to feel at peace being in the marriage or in leaving. His wife was verbally beating him up over his indecisiveness, often calling him a wimp. As his therapist, I asked to speak to the part of him who wanted out and I told him I didn't want to hear from any other part. He started to speak quite clearly about feeling no passion for his wife, but within a minute he began to hedge this voice with statements like "She is a good mother or she is dependable." Each time he would attempt to dilute in this way, I would have to say that I only wanted to hear from the voice that wants "out." As the wanting "out" voice became more and more expressive, he began to visibly sweat. I asked "What is happening?" Finally, he said, "I am feeling guilty." Where is that coming from?" I asked. He said, "I made a promise that I would never follow the path of my father who left my mother." With this opposing voice sorted out and clarified, he was no longer confused. He was able to see that this old promise to himself was in conflict with his present desire to end his marriage. As he continued to work through those two opposing parts of himself he was finally able to make a decision that he felt at peace with and three months later he began the divorce proceedings.

7. Can you handle the unpleasant consequences of divorce?

Divorce brings change and grief because it is the loss of the "happy family" dream. Hurts , disappointments, loneliness, failure, rejection, inadequacy can all take hold of the psyche when we are in this extremely vulnerable passage. To be ready for the ups and downs of divorce, it is necessary to have a support system of family and friends who will be there to help you emotionally and practically when needed.

One of the hardest consequences of divorce is needing to face another person's pain, be it your children's, your family or friends because divorce affects so many people's lives. If you are the one choosing the divorce, you will have to hold on to your decision and the ending of your marriage in the face of all these people and circumstances. If you are the one who does not want the divorce, but your spouse wants to proceed, you will still need to get ready to accept the following consequences of a failed marriage. To know if you are ready, ask yourself if you are prepared for the following changes:

  • If you don't want changes to your finances, lifestyle, or traditions, then you are not ready for divorce;
  • If you cannot accept your children's sadness and anger, then you are not ready for divorce;
  • If you cannot acceptance times of insecurity, fear, and the unknown, then you are not ready for divorce;
  • If you are not willing to let go of your spouse mentally, emotionally, and spiritually, then you are not ready for divorce. I recall one woman who was totally bored with her one-dimensional passive husband, and she expressed what seemed like a very strong desire to leave him after 20 years of marriage. Each time she would tell me that she was going to tell him she wanted to separate, she would back off long before she got home. To help her recognize her own struggle, we made a list of the consequences of divorce, and the one thing she said she could never accept was the fact that her kids would hate her for leaving their father. She said she could not risk that, no matter how bored she was. Once she owned that this unpleasant consequence of her divorcing him would be more than she could stand, she was able to think of other ways to resolve the problem of being bored in her marriage. Over time she became more independent and started to travel and develop interests of her own.

8. Are you willing to take control of your life in a responsible and mature way?

Whether you are the one who wants the divorce or the one who is having to respond to your spouse wanting the divorce both situations have one thing in common, the marriage is ending. How people respond to this fact determines the type of divorce and future they will have. They can come from a position of bitterness, revenge, or helplessness, or they can negotiate for their future from a position of strength, understanding and respect. The attitude you choose will determine the type of divorce you have. Your options are as follows:

You can make Agreements that:

Protect your rights only or Respect your spouse's rights too

Are only good for you or Are good for everyone

Give your spouse less or Give your spouse what is rightfully theirs

Do not inconvenience you or Work well for everyone

Need frequent court hearings to enforce or Need no court hearings to enforce

It is our experience that people who prepare themselves by first addressing all eight questions are more likely to have a collaborative divorce. By starting the process in this way, they are much better able to make lasting agreements with each other, resolve their difficulties, and develop parenting plans that both supports the children and respects each other's rights.