Los Angeles Divorce and Family Law

Bankruptcy Plus Divorce Equals Major Drama

By Jacqueline Palank, Oct 13, 2009 The WSJ Blog

Associated Press

Earlier this year, the Minnesota State Patrol launched a criminal investigation into Denny Hecker Automotive Group.

Bankruptcy cases generally don’t involve bitter divorces, complaints about mistresses and boy-toys, multiple homes, Rolexes, furs, expensive cars and plastic surgery. Unless you’re Denny Hecker.

In Minnesota, Hecker is in the middle of a particularly contentious liquidation of his personal assets as a result of the collapse of his business empire. The former owner of 26 auto dealerships, the Advantage Rent-A-Car chain and other businesses is simultaneously going through a nasty divorce battle with estranged wife Tamitha Hecker, which has devolved into a he-said, she-said fight over their financial situations and personal conduct.

The latest news from the land of 10,000 lakes is that a state district court judge has ordered Denny Hecker to explain just how he’s been able to burn through a minimum of $25,000 a month while calling himself bankrupt and unemployed. According to the Minneapolis Star Tribune, Hecker has two weeks to document what he has said is the generosity of his friends and business associates. With such information, the judge plans to determine whether Tamitha Hecker’s request for $7,500 in monthly support (the estranged spouses have two kids, ages 14 and 7) should be granted.

While covering the twists and turns of the Heckers’ legal woes, the Star Tribune has reportedthat Tamitha Hecker hasn’t bought Denny Hecker’s claim that his pockets are bare. She pointed to $13,000 on six round-trip, first-class plane tickets that ferried her ex, his mistress and their respective kids to Hawaii this August. He also treated his mistress to steakhouse dinners nearly every day, Tamitha Hecker alleged, plus scheduled a $9,500 facelift. Denny Hecker defended the latter charge, saying that he consulted the plastic surgeon regarding damage to his neck from the tumor he had removed last year. He also denied that the plane tickets cost $13,000 and said he didn’t frequent high-end steakhouses with his mistress. He shot back at her for heading to Arizona to visit her “boy-toy.” And he argued that his estranged wife doesn’t need his help, what with the $200,000 in cash she has stored in a safety deposit box, not to mention a dozen Rolex watches, half a dozen fur coats and at least $1 million in jewelry she can sell.

Nearly a dozen Rolex watches are in fact headed to the auction block, but they’re not Tamitha’s. The watches – along with a Cartier travel clock, 18-karat men’s diamond ring and portraits signed by golfers Arnold Palmer, Tiger Woods and Jack Nicklaus – will be up for grabs at a public auction of Denny Hecker’s assets on Oct. 19 in New Germany, Minn.

Don’t expect to see Tamitha Hecker’s possessions on the block; she reportedly promised the trustee in charge of her ex’s estate that she wouldn’t touch the money or goods. Apparently that doesn’t exclude wearing them. The Star Trib spotted her at a recent court hearing with “a dazzling yellow-and-white diamond ring” on one hand and “a more subdued but equally sparkling diamond ring” on the other.

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In Malaysia, It Pays For Couples To Reconcile

October 13, 2009

Officials in a Malaysian state said they were concerned about the high divorce rate, so they're doing something about it. The state is offering to pay troubled couples to take a second honeymoon. The government will pay for three days and two nights on a tropical island. Those who need more than sunshine will even get counseling sessions.

Listen to NPR story20091013_me_51

The Facebook divorce

Couples are broadcasting their breakups online while friends -- and lawyers! -- watch in amazement and horror

By Amanda Fortini

We have long known that social networking facilitates hooking up. But what about breaking up? Does processing -- and broadcasting -- our feelings from the real, private realm in a virtual, public realm like Facebook make ending a relationship, that most painful of human experiences, more or less difficult to endure? It depends.

read more on salon.com

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Marriage counselling in the Maldives? Travel firm launches 'divorce tourism' packages

By Travelmail Reporter
Last updated at 1:16 PM on 03rd September 200

If you're experiencing marital strife, the thought of sharing your two-week holiday in the Maldiveswith a marriage guidance counsellor may not be conducive to patching things up.

But if one Indian travel firm's idea to use holidays to pull couples back from the brink of divorce catches on, the concept could be heading for Britain.

Mumbai-based KV Tours and Travels is offering 'divorce tourism' packages where couples are accompanied by a relationship counsellor to encourage them to give things another go.

Lovers reunited? A holiday can be a last resort for warring couples

Despite the fact that Indiahas one of the world's lowest divorce rates with one in 100 married couples breaking up, it is apparently on the rise.

KV Tours and Travels chief executive Vijesh Thakker, who was inspired by the break-up of a friend's marriage, said: 'With divorce tourism, what we're trying to do is to bring together couples who are heading towards divorce to stop them.

'Nowadays divorce rates are rising, so we need to sort it out. It's a good thing we're doing. And we're helping domestic and international governments by promoting tourism.

'We're not destiny changers, we want them to treat the trip like a second honeymoon.'

Holiday options range from week-long breaks in hill station resorts at around $720 to far-flung destinations.

'We're trying to send them where they have not been before, where there are not many people - and no relatives,' added 'happily-married' Mr Thakker, who believes a  seven-day holiday is long enough for a couples fate to be sealed.

Mr Thakker is marketing the concept to family members keen to see their relatives reunited.

Clinical psychologist and psychotherapist Rhea Pravin Tembhekar said the idea might work in some cases - but not all.

She said: 'If you're fighting about trivial things, like time management or in-laws issues - "my mother, your mother, my money, your money, etcetera" - maybe a holiday might work.

'But sometimes the issues are very critical, like domestic violence. You can't go on holiday and resolve that.'

Read more: http://www.dailymail.co.uk/travel/article-1210892/Marriage-counselling-Maldives-KV-Tours--Travels-launches-divorce-tourism-packages.html#ixzz0RPN92xDD

 

 

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It's time to update our divorce laws

15 September, 2009 by Ruth Deech The Guardian

Women are still treated as financially dependent on men by laws that haven't been overhauled since 1857. It's unfair all round

Imagine three sisters. One is very pretty and marries a top footballer; they have no children and it is a short marriage before she leaves him for an international celebrity. The second sister marries a clergyman and has several children; the marriage ends after 30 years as he is moving into retirement. The third sister never marries; she stays at home and nurses first their mother, who has a disability, and then their father, who has Alzheimer's, and dies without making a will. Which of the three sisters will get the windfall, an amount sufficient to keep her in luxury for the rest of her days, when her relationship with a man comes to an end? And which one most needs and deserves financial support, even of the bare minimum?

The divorce courts are still trying to put women in the position they would have been in had the marriage not ended. The message is that getting married to a well-off man is an alternative career to one in the workforce. If you are married to a clergyman with a tied house and little income, you will get next to nothing, and of course not even the continued occupation of the vicarage. If your parents do not make a will in your favour, and you are over the age of majority, you might be able to make a claim under the Inheritance (Provision for Family & Dependants) Act 1975, but to be eligible the claimant has to have been economically dependant on the deceased, and in the case of the carer daughter, it was more probably the other way round.

The law is of course gender neutral on the face of it. Men too can expect to continue in the style of living to which they have been accustomed if they have the good fortune to divorce a wife who is wealthier than they are. Guy Ritchie reportedly received about £50m from Madonna, the largest ever settlement made for a man. He was worth about £30m and she £300m at the time. Here are some other examples of how maintenance is allocated on divorce. Of course they are all well-off families, for the poor have nothing to allocate. Beverley Charman was awarded £48m after a 28-year marriage during which she pursued no outside employment, a sum legally notable because it went far beyond what had once been the yardstick, namely the spouse's reasonable requirements.

Mr and Mrs Miller married in 2000 and divorced after 3 years, with no children. He was then 40 and she 35, and he left her for another woman. She earned £85K a year and had no assets; he had £17m or so and a huge salary. The award to her of £5m was upheld all the way on appeal. Mr and Mrs McFarlane had three children after a marriage that lasted 16 years. She gave up her career as a solicitor to be a mother. The court of appeal awarded her half the matrimonial assets and £250,000 a year for five years. Her appeal against the time limitation of five years was successful. In the case of White v White, the legal costs of the couple were £500K to gain assets of £1.5m when both their appeals were dismissed by the House of Lords. So a clear first point to notice is that the costs of disputes may amount to as much as the assets. This is because of the lack of certainty. So the procedure is bad and the theory and effects that underly the awards even worse.

Maintenance law has not been thoroughly overhauled since 1857. It has been left behind by social developments. Most women, even with children, now work or are expected to work; they claim equal pay and opportunities in employment; there is contraception to enable a family to be planned, and more women are entering higher education and the professions than men.

It is contradictory if family law assumes that a woman can and should stay at home and care for their children and be compensated for that on divorce, while society calls for women to take 50% of top jobs.

Just under half the workforce is female, and 70% of married women work, even mothers, although the work rate of single mothers is lower; 40% of marriages break down; more women will become widows or single and have to keep themselves; 50% of divorces are of marriages that lasted nine years or less. But the concept of female dependency on the male continues to permeate maintenance laws.

More than that, maintenance laws cushion and legitimise the attitudes of employers who discriminate against women, because they are aware of the "meal ticket for life" mentality.

The strongest argument in favour of maintenance is that the divorced wife will have raised children and her career has been undermined by marriage. Given that most women work, this is a matter of choice; childcare does not take up the whole of a long marriage; and the wealthier the spouses the less likely that there was much to do by way of housework.

The notion of "compensation" recently put forward by judges as a basis for awards is unrealistic. It is covering up for the fact that our divorce rate is high because in part the law has made it easy, and we are punishing men and trying to limit the welfare liability of the state by making them pay over assets and pension funds. Perceptions of what might happen to their funds on divorce may affect men's willingness to commit (and women's, if they have means). This adds to the high cost to society of marital breakdown overall. Regardless of the theories, some certainty about the way to split assets may be more important than total fairness, especially when considering how difficult negotiations may impact on the children's wellbeing.

One could actually categorise divorce cases into four. Short marriages with no children; couples on welfare; middle-income couples with a house and not much more; and the wealthy.

For the poor and unemployed there can only be a token order, a reminder to the father that he has children for whom he is responsible, and that the order could be revisited if circumstances change. For the slightly better off, there is reallocation of the house and there may be repayments of legal aid to be made. Then there is one law for the rich and one for the poor, because the wealthy wife gets a lump sum and has no need to pursue, as the poorer may have to, the enforcement of periodical payments.

It is no wonder that England is the divorce capital of Europe and out of step with other European countries. The notion that a wife should get half of the joint assets of a couple after even a short childless marriage has crept up on us without any parliamentary legislation to this effect – the judges have developed the law in a paternalistic and unprincipled fashion that has departed widely from parliamentary intentions. (read more)

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Divorce May Make You Sick

NEW YORK, July 28, 2009 CBS News

Study Finds Divorced and Widowed Adults Have 20 Percent More Chronic Conditions than Married People

  

 

Psychologist Jeff Gardere spoke to Julie Chen about the damaging mental stress that may result from divorce.

 

(CBS)  Can divorce make you sick?

Yes, according to a new study that finds divorce and widowhood have a lingering, detrimental impact on health -- even after remarriage.

The study, scheduled to be published in the September issue of the Journal of Health and Social Behavior, analyzes data from nearly 9,000 adults nationwide, ages 51 to 61, and finds those who had been divorced or widowed suffered 20 percent more chronic health conditions, such as heart disease, diabetes or cancer, than individuals who were currently married.

Dr. Catherine Birndorf, associate professor of psychiatry at New York Presbyterian Hospital-Weill Cornell Medical Center told CBS News, "With a divorce or with disruption in a family like that,(it) can lead to depression, anxiety, other kinds of psychological illnesses."

Researchers have known for years that marriage is good for your health, but they've been less clear on how you'll do if you lose your spouse to divorce or death.

The study also suggests that divorce can be so traumatic that not even tying the knot again is enough to reverse the physical and mental toll.

So does this mean spouses should stick together even when the going gets really tough?

Birndorf said, "If someone's in a bad marriage, I would want to try and help them figure out how to make it better. But I wouldn't rule out the idea that it may need to end in divorce versus staying together for the sake of health."

In fact, Dr. Jeff Gardere, a clinical psychologist, said on "The Early Show" Tuesday, if you're in a "toxic" relationship that involves physical or mental abuse or in a relationship where you just can't get along, it's best to get out of it because the health benefits of divorce are much better than staying in a bad situation.

However, if you are thinking of getting a divorce, Gardere said you should have a doctor on hand.

Why?

"We're finding that divorce is so traumatic on the system, on your mind, on your body, that it's important that you consult your physician or even talk to a mental health professional about the stress that you're going through so that you don't become sick," he said.

The study also showed the benefits of being married versus unmarried, according to Gardere. Men seem to reap the benefits of being married much more than women in terms of emotional and physical health, while women do better financially because of marriage.

Gardere said that's because women tend to tell their husbands to take care of themselves on an ongoing basis, so they take the advice and care for their health.

"Early Show" co-anchor Julie Chen remarked men don't like to be nagged that way.

Gardere responded, "(Men) don't like to be nagged, but I think if you keep pushing them in the right direction, and tell them it is about love and about staying healthy, so that they can have a good marriage and raise their families, that guys after a while tend to listen."

But what about remarrying? Is it worth it?

Gardere says yes.

"We're finding that it is such a trauma to the system being in that divorce or being widowed that it does take years to come back even if you are married, but the advice we seem to be giving is go ahead and remarry because you can get better in time."

Divorce and hard times

Gregory Rodriguez, July 13, 2009 Los Angeles Times

Economic woes often cause marital splits, right? Well, not so fast.

Can't stand your boring husband? Thinking of calling it quits? Well, you should have mustered the nerve to leave him well before this economic crisis. Now you might not be able to afford to live without him, literally.

It's a well-known fact that financial woes are the biggest cause of marital spats. With the economy the way it is, you'd expect lots of husbands and wives to be at each other's throats. But the conventional wisdom is wrong. This recession is so bad that you can count divorce lawyers among those professions that have taken a hit. 

That's good news, right? People are now forced to stay together and work things out. Well, not if history tells us anything. The Depression also saw a decline in the divorce rate, but, according to marriage historian Stephanie Coontz, incidents of domestic violence and outright family desertion went up.

In any case, despite the fact that divorce can cause all sorts of emotional and financial turmoil, its statistical decline isn't as positive a social indicator as one might think. As economist David Friedman has written, divorce is actually a reflection of "an increase in the range of choice available to individuals," and a high divorce rate and the general weakening of marriage "are bad things only to the extent that they reflect a failure of our institutions and expectations to adjust completely to new circumstances." 

In other words, in more traditional days, in which social changes occurred more slowly, we all shared a general idea as to what marriage was and how it functioned. From an economic standpoint, we all understood how the marital division of labor worked. But in a rapidly changing society, it's harder to figure out what kind of arrangement we should make with our spouses. Such changes as the entrance of large numbers of women into the workplace and the mechanization or outsourcing of household duties (from washing clothes to curing bacon) undermined that tradition. 

As the basic marriage deal has shifted, our notions and ideals haven't shifted with it, and the disconnect explains the astronomical divorce rate in contemporary America. We haven't figured out a new marriage model that takes into account the greater range of choices for both women and men. 

This fits right into the fact that we're divorcing less in hard times. In the context of this recession, we have fewer choices, and fewer choices means we're back to a good fit with the marriage model of old. Still -- and a little paradoxically -- the fact that there are untraditional marriages may also be helping husbands and wives withstand some of the emotional and financial stress of economic hard times. During the Depression, the ego blow to a man who lost his job caused marital problems. Today, if a man loses his job -- and his wife is the breadwinner -- it's less likely to create as much unhappiness. 

If it's distasteful to you to look at marriage in economic terms, then it might be easier to consider the economics of divorce. Not only are there attorney's fees to be paid, but the value of the two biggest assets of most marriages -- a home and a retirement plan -- has diminished dramatically. Faced with the prospect of halving their shrunken assets, many couples are deciding to stick it out a while. 

A recent survey conducted by the Institute of Divorce Financial Analysts -- who knew? -- found that 68% of its members "have seen clients who could not afford to get divorced because of recession-related financial problems." 

So even as most of us are looking forward to happier days of an economic recovery, there must be a number of Americans who are waiting patiently to be able to afford to experience the pain and suffering of divorce. You've heard of the pent-up desire and aspiration that are released after times of war? That's why we get such phenomena as baby booms. When this economic recovery finally arrives, prepare yourselves for a boom of an entirely different sort.

write to George Rodriguez: grodriguez@latimescolumnists.com

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DIVORCE FAQ

1. What are grounds for divorce in California?

2. Are there rules that my spouse and I must follow during the divorce process?

3. Do I have any options in how I handle my divorce?

4. Can I get a legal separation or an annulment instead of a divorce?

5. Is there a simplified process for getting a divorce?

6. How do I file for divorce?

7. What should I do if my spouse injures me?

8. How can I get information from my spouse about our property and finances?

9. How will our property be divided?

10. What is spousal support? Is it the same as alimony?

11. What happens to our children when we separate?

12. What happens if we cannot agree on custody?

13. What choices does the judge have in granting custody or visitation rights?

14. Will the judge consider our children's wishes?

15. Is the dissolution process the same for registered domestic partners?

16. Do I need a lawyer?

17. How can I find and hire the right lawyer?

18. How can I get a divorce through mediation?

19. Can I handle my own divorce without a lawyer?

20. What can I do to make my case faster and cheaper?

For divorce terminology check our glossary site

 

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More on Mel Gibson's divorce

In the divorce between Mel Gibson and Robyn, his wife of twenty eight years, much has been made of the fact that they allegedly had no prenuptial agreement. This means that Robyn could be entitled to up to fifty percent of any marital assets acquired during the marriage. A lesser reported fact is the discrepancy between the alleged dates of separation in the legal papers.

Reports state that Robyn filed a Petition for Dissolution giving the date of separation as “to be determined.” In Mel’s Response he is reported to have alleged that August 26, 2006 was the date when they separated - about a month after his infamous DUI arrest.

A big deal? Maybe. The date of separation could mean big dollars.

This is because in any fight over the division of marital assets, a spouse is only entitled to a share of pre-date of separation earnings and assets. In the Gibson’s case, it is anybody’s guess how much money he made after 2006.

So if there is a legal fight, how is a California court going to decide upon the date of separation?

Section 771 of the California Family Code refers to “living separate and apart.”  This has been interpreted by the Appellate Division as a two pronged test. First, at least one of the parties must have a subjective intent to end the marriage. This means that the Court will look at the party’s words and conduct to see if at least one of them intended to end the marriage. Specifically, it will not give any weight to what the tabloids print or the public thinks. For example, if it turns out that the Gibson’s had a secret agreement to separate in 2006 after the DUI incident but they decided to maintain a united front for the sake of the children, a court is not going to give any weight to the public appearance of a marriage.

            Second, there must be some objective evidence of conduct furthering the intent to end the marriage. Words are not enough. Telling your wife that you want a divorce, by itself, is not going to do the job. The Court believes that actions speak louder than words: they are going to look at all the circumstances to determine if one of the parties did something to sever the marital relationship.  One of those circumstances might be moving out the family home, but that is not always a deciding factor. There are several decided cases where moving out of the family home did not trigger a legal separation because the spouses continued to maintain close personal ties.

            In the Gibson case, even if they remained living together in the same house after 2006, a Judge still has the power to look at all the facts and circumstances and decide that they separated earlier. The Judge is going to carefully consider their communications with each other along other evidence that shows they intended to end the marriage – e.g. whether they had intimate relations, attended social and business events together, had family meals, sought the advice of lawyers, went to marriage counseling, celebrated wedding anniversaries, maintained joint accounts, filed taxes jointly and conducted business transactions together etc. etc.

             If the Gibson’s do decide to contest the date of separation, either one of them may ask the court to conduct a “mini-trial” on the issue.

            The leading cases in California regarding separation and date of separation are Marriage of BARAGRY (1977) 73 Cal.App.3d 944, Marriage of Von Der NEULL (1994) 23 Cal.App.4th 730, Marriage of HARDIN (1995) 37 Cal.App.4th 448, and Marriage of MANFER (2006) 114 Cal.App.4th 925.

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MEL GIBSON DIVORCE DATE OF SEPARATION

Thank you to attorney Donald Conviser for this prediction that there may a battle over a date of separation battle in the Mel Gibson divorce. According to USMagazine - Mel's response states that the date of separation is August 26, 2006. 

Don Conviser states: "I heard a rumor that there may be a "date of separation" battle coming in the Mel Gibson divorce. If so, Mel would contend that the date of separation was a date earlier than the date of actual physical separation of the parties and his wife would contend that the date of separation was later - either the date of physical separation, or even a later date. Post-separation earnings of a party comprise separate property of that party, whereas pre-separation earnings are community property. Acquisitions during marriage are presumed to be community property, but acquisitions traceable to separate property are separate property of the "separatizer"."

So why would Mel claim an early date of separation? I did an IMDB search and say that Apocolypto came out in 2006. 

The leading cases in California regarding separation and date of separation are Marriage of BARAGRY (1977) 73 Cal.App.3d 944, Marriage of Von Der NEULL (1994) 23 Cal.App.4th 730, Marriage of HARDIN (1995) 37 Cal.App.4th 448, and Marriage of MANFER (2006) 114 Cal.App.4th 925. The critical inquiry is whether or not the parties' conduct (or the conduct of one party) evidences a complete and final break in the marital relationship.

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A HAMMY TRIAL

Thanks Judith at http://judithsdivorceblog.blogspot.com/search/label/love for this gem. This is one of my favourite blogs at the moment.

Today in Great Dunmow, Essex an historic competition took place to find the happiest married couple. Known as the Dunmow Flitch Trial and dating back to 1104, the event takes place every 4 years. Entrants have to convince the jury that in a year and a day they have not wished themselves unwed. The winners are rewarded with a flitch of bacon (otherwise known as a half pig), whilst runners up make do with a joint of gammon. It must be the only set of proceedings involving couples where the aim is to show how much you love each other rather than to seek a divorce.

The Top Ten Myths of Marriage

The Top Ten Myths of Marriage
David Popenoe

1. Marriage benefits men much more than women.

Contrary to earlier and widely publicized reports, recent research finds men and women to benefit about equally from marriage, although in different ways. Both men and women live longer, happier, healthier and wealthier lives when they are married. Husbands typically gain greater health benefits while wives gain greater financial advantages.¹ [Source] 

2. Having children typically brings a married couple closer together and increases marital happiness.

Many studies have shown that the arrival of the first baby commonly has the effect of pushing the mother and father farther apart, and bringing stress to the marriage. However, couples with children have a slightly lower rate of divorce than childless couples.² [Sources]

3. The keys to long-term marital success are good luck and romantic love.

Rather than luck and love, the most common reasons couples give for their long-term marital success are commitment and companionship. They define their marriage as a creation that has taken hard work, dedication and commitment (to each other and to the institution of marriage). The happiest couples are friends who share lives and are compatible in interests and values.³ [Sources]

4. The more educated a woman becomes, the lower are her chances of getting married.

A recent study based on marriage rates in the mid-1990s concluded that today’s women college graduates are more likely to marry than their non-college peers, despite their older age at first marriage. This is a change from the past, when women with more education were less likely to marry.⁴ [Sources]

5. Couples who live together before marriage, and are thus able to test how well suited they are for each other, have more satisfying and longer-lasting marriages than couples who do not.

Many studies have found that those who live together before marriage have less satisfying marriages and a considerably higher chance of eventually breaking up. One reason is that people who cohabit may be more skittish of commitment and more likely to call it quits when problems arise. But in addition, the very act of living together may lead to attitudes that make happy marriages more difficult. The findings of one recent study, for example, suggest "there may be less motivation for cohabiting partners to develop their conflict resolution and support skills." (One important exception: cohabiting couples who are already planning to marry each other in the near future have just as good a chance at staying together as couples who don’t live together before marriage).⁵ [Sources]

6. People can’t be expected to stay in a marriage for a lifetime as they did in the past because we live so much longer today.

Unless our comparison goes back a hundred years, there is no basis for this belief. The enormous increase in longevity is due mainly to a steep reduction in infant mortality. And while adults today can expect to live a little longer than their grandparents, they also marry at a later age. The life span of a typical, divorce-free marriage, therefore, has not changed much in the past fifty years. Also, many couples call it quits long before they get to a significant anniversary: half of all divorces take place by the seventh year of a marriage. ⁶ [Sources]

7. Marrying puts a woman at greater risk of domestic violence than if she remains single.

Contrary to the proposition that for men "a marriage license is a hitting license," a large body of research shows that being unmarried—and especially living with a man outside of marriage—is associated with a considerably higher risk of domestic violence for women. One reason for this finding is that married women may significantly underreport domestic violence. Further, women are less likely to marry and more likely to divorce a man who is violent. Yet it is probably also the case that married men are less likely to commit domestic violence because they are more invested in their wives’ wellbeing, and more integrated into the extended family and community. These social forces seem to help check men’s violent behavior.⁷ [Sources]

8. Married people have less satisfying sex lives, and less sex, than single people.

According to a large-scale national study, married people have both more and better sex than do their unmarried counterparts. Not only do they have sex more often but they enjoy it more, both physically and emotionally.⁸ [Sources]

9. Cohabitation is just like marriage, but without "the piece of paper."

Cohabitation typically does not bring the benefits—in physical health, wealth, and emotional wellbeing—that marriage does. In terms of these benefits cohabitants in the United States more closely resemble singles than married couples. This is due, in part, to the fact that cohabitants tend not to be as committed as married couples, and they are more oriented toward their own personal autonomy and less to the wellbeing of their partner.⁹ [Sources]

10. Because of the high divorce rate, which weeds out the unhappy marriages, people who stay married have happier marriages than people did in the past when everyone stuck it out, no matter how bad the marriage.

According to what people have reported in several large national surveys, the general level of happiness in marriages has not increased and probably has declined slightly. Some studies have found in recent marriages, compared to those of twenty or thirty years ago, significantly more work-related stress, more marital conflict and less marital interaction.¹⁰ [Sources]

---

¹ The research on this topic is reviewed in Linda J. Waite and Maggie Gallagher, The Case for Marriage (New York: Doubleday, 2000): Ch. 12 [back to text]

² Carolyn Pape Cowan and Philip A. Cowan, When Partners Become Parents: The Big Life Change for Couples (New York: Basic Books, 1992); Jay Belsky and John Kelly, The Transition to Parenthood (NewYork: Dell, 1994); Tim B. Heaton, "Marital Stability Throughout the Child-rearing Years" Demography 27 (1990):55-63; Linda Waite and Lee A. Lillard, "Children and Marital Disruption" American Journal of Sociology 96 (1991):930-953 [back to text]

³ Finnegan Alford-Cooper, For Keeps: Marriages the Last a Lifetime (Armonk, NY: M. E. Sharpe, 1998); Judith Wallerstein and Sandra Blakeslee. The Good Marriage (Boston: Houghton Mifflin, 1995); Robert Lauer and Jeanette Lauer, "Factors in Long-Term Marriage" Journal of Family Issues 7:4 (1986): 382-390 [back to text]

⁴ Joshua R. Goldstein and Catherine T. Kenney, "Marriage Delayed or Marriage Forgone? New Cohort Forecasts of First Marriage for U. S. Women" American Sociological Review 66 (2001):506-519 [back to text]

⁵ Alfred DeMaris and K. Vaninadha Rao, "Premarital Cohabitation and Marital Instability in the United States: A Reassessment" Journal of Marriage and the Family 54 (1992):178-190; Pamela J. Smock, "Cohabitation in the United States" Annual Review of Sociology 26 (2000); William G. Axinn and Jennifer S. Barber, "Living Arrangements and Family Formation Attitudes in Early Adulthood" Journal of Marriage and the Family 59 (1997):595-611; Susan L. Brown, "The Effect of Union Type on Psychological Well-Being: Depression Among Cohabitors Versus Marrieds" Journal of Health and Social Behavior 41 (2000):241-55; Catherine L. Cohan and Stacey Kleinbaum, "Toward a Greater Understanding of the Cohabitation Effect: Premarital Cohabitation and Marital Communication" Journal of Marriage and the Family 64 (2002): 180-192 [back to text]

⁶ Norval D. Glenn, "A Critique of Twenty Family and Marriage and Family Textbooks" Family Relations 46-3 (1997):197-208 [back to text]

⁷ Jan E. Stets, "Cohabiting and Marital Aggression: The Role of Social Isolation" Journal of Marriage and the Family 53 (1991):669-680; Richard J. Gelles, Intimate Violence in Families, 3^rd ed. (Thousand Oaks, CA: 1997); Linda J. Waite and Maggie Gallagher, The Case for Marriage (New York: Doubleday, 2000): Ch. 11 [back to text]

⁸ Linda J. Waite and Kara Joyner, "Emotional and Physical Satisfaction with Sex in Married, Cohabiting, and Dating Sexual Unions: Do Men and Women Differ?" Pp. 239-269 in E. O. Laumann and R. T. Michael, eds., Sex, Love, and Health in America (Chicago, IL: University of Chicago Press, 2001); Edward O. Laumann, J. H. Gagnon, R. T. Michael and S. Michaels, The Social Organization of Sexuality: Sexual Practices in the United States (Chicago, IL: University of Chicago Press, 1994) [back to text]

⁹ Stephen L. Nock, "A Comparison of Marriages and Cohabiting Relationships" Journal of Family Issues 16-1 (1995): 53-76; Amy Mehraban Pienta, et. al., "Health Consequences of Marriage for the Retirement Years" Journal of Family Issues 21-5 (2000):559-586; Susan L. Brown, "The Effect of Union Type on Psychological Well-Being: Depression Among Cohabitors versus Marrieds" Journal of Health and Social Behavior 41(2000):241-255; Susan L. Brown and Alan Booth, "Cohabitation Versus Marriage: A Comparison of Relationship Quality" Journal of Marriage and the Family 58 (1996):668-678. [back to text]

¹⁰ Norval D. Glenn, "Values, Attitudes, and the State of American Marriage" Pp. 15-33 in David Popenoe, D. Blankenhorn and J. B. Elshtain (eds.) Promises to Keep: Decline and Renewal of Marriage in America (Lanham, MD: Rowman and Littlefield, 1996); Stacy J. Rogers and Paul R. Amato, "Is Marital Quality Declining: The Evidence from Two Generations" Social Forces 75 (1997); Stacy J. Rogers and Paul R. Amato, "Have Changes in Gender Relations Affected Marital Quality?" Social Forces 79 (2000):731-753; General Social Survey, National Opinion Research Center, University of Chicago. [back to text]

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New York Times: Private Marriage

An interesting article from the op ed page of the New York Times. Read article

For more information see California divorce  

Legal: Five Uses and Abuses of the Internet in Divorce Cases

Something I wrote for divorce 360

By WARREN SHIELL

    Given the number of people who use the World Wide Web, here are five uses and abuses of the Internet in divorce cases.

1. Long-Distance Web Cam Parenting. 
Web cam technology over the Internet using software such as Skype or IChat allows parents who re-locate or relatives such as grandparents who live far away from their grandchildren to communicate on a more immediate and personal level. Some courts are even mandating web cam visitation in their orders. States such as Utah, Wisconsin and Missouri have made virtual visitation part of state law. Other states such as California and Ohio are considering the option. There is a potential downside. Sherry Turkle, a psychologist at the Massachusetts Institute of Technology, conducted interviews with older grandchildren who video chat with grandparents who said that they they visit them less because they have already “seen” them.  

 

2. Finding Evidence. 
Searching public social networking sites such as Facebook or Myspace or dating sites are a free and legal way of finding evidence. How do you tell the judge that you income is $30,000 when you claim on your dating profile that you make $200,000 per year. How do you explain to the Judge the picture of you posted by someone on Facebook of you at a party in a drunken stupor when you were said you were at home doing homework with the kids? An extreme example would be the case of Joshua Lipton who according to published reports was sentenced to two years in prison when the Judge in his drunk driving case saw a picture of him posted on Facebook at a Halloween party wearing a "prisoner" costume with "jail bird" written on his orange jumpsuit. 

3. Wiretapping.
There is a clear distinction between legally obtaining evidence from public posts on social networking sites and illegally wiretapping your spouse by recording private telephone conversations or by installing spyware on your spouse’s computer. The latter is illegal. Most likely the evidence will not be admissible in court and may result in civil and criminal sanctions. In one reported divorce case in New Jersey a wife was granted $7,500 when her husband installed spyware on her computer to track her e-mails. Such wiretapping may be subject to state and federal criminal sanctions. For example, in California, the Family Code provides that interspousal wiretapping via use of electronic devices such as tape recorders is illegal and its fruits inadmissible by statute. If you want to secretly record a telephone conversation you must first obtain a court order.  

4. Communicating.
In high conflict cases, the court may order the parties to communicate by email as a way of lowering tension and documenting communications. Some companies such as OurFamilyWizard have developed software specifically designed for divorcing families so they can keep track of their communications, share journals and calendars and post the times and dates of events such as teacher parent conferences and school plays. However, the Internet is not the place to vent your anger and frustration at your ex. If you make threats or use obscene or derogatory language in an e-mail or posting, you will probably find that the other side will use it as evidence against you. If you post something that is open to the public the consequences can be even more serious. In Colorado, the press reports that a man was charged with criminal libel for allegedly posting on craigslist accusations that his former lover traded sex for legal services from her attorney.  

5. The Cause of Divorce.
By now everyone is aware that cyberspace relationships often lead to marital strife and divorce especially when they result in real life affairs. One of the most bizarre stories of cyberspace romance comes from the United Kingdom where a women filed for divorce when she found out that her husband’s alter ego “Dave Barmy” was having sex with a call girl in the game Second Life. In real life in his defense the husband claimed that he was forced to look for affection elsewhere due to his real wife’s addiction to the game World of Warcraft.

For more information visit www.la-familylaw.com

 

Wiretapping

Here's where I'm quoted on divorce 360 about wiretapping:

Experts Warn People to Follow the Law when Considering Spying on Ex-Spouses

 

By DIVORCE360.COM STAFF

 

    Experts are warning anyone involved in divorce to make certain they don’t step over any legal lines after a Nebraska man filed a civil lawsuit against his ex-wife, saying she hid a voice recorder in his daughter’s teddy bear to spy on him.

"This is actually a great story about the extremes a psycho mom will go to, and how it only increases the rancor" in a divorce, said California family law attorney David Pisarra. He said the bigger issue, is "how people try to get dirt on the other side and how fruitless it usually is."

 

According to a report in the Associated Press, the federal lawsuit alleges that the woman and her father tried to use the voice recordings in a custody battle involving the couple’s young daughter. The lawsuit seeks $700,000 plus damages for violation of privacy and violation of state and federal wiretapping laws.

Bill Mitchell, a private investigator who has been featured on the Dr. Phil show, said it’s common for former spouses to consider spying on their ex-partners. His agency has received thousands of questions about voice and video recording from people all over the country. He always advices they check their state law, which varies, and the federal law.

California family law attorney Warren Shiell agreed: “I always advise clients against this kind of eavesdropping since it is illegal. Federal law and most states have passed wiretapping statutes that make it illegal to listen in or record conversations without consent of both parties or court order.”

“I have had cases where the client has told me that their spouse is harassing them over the telephone or making derogatory remarks about them to their children. We’ve gone to court to get an order allowing both parties to record telephone conversations and those recordings are OK to use,” Shiell said.

In the Omaha case, local media reports suggest the woman, Dianna Divingnzzo, used the teddy bear to conduct surveillance because it was her daughter’s favorite toy. The bear’s head was removed, the voice recorder implanted and the head reattached as part of the scheme, which was supposed to monitor visitations and provide information that would keep the child’s father, William Duane Lewton, from obtaining additional custody rights. The child’s father recently was granted partial custody.

“Each time these incidents surface, it’s a reminder to the public that no one is above the law,” Mitchell said. Cases like this one show how “desperate” people are -- “violating other people’s rights just to win a custody battle,” he said.The irony of this case, according to Mitchell, is that the woman and her father “recorded hundreds of conversations,” but “the most important conversation missing is the one with their attorney” who, the lawsuit claims, approved the wiretapping. The attorney has disputed that claim.

“I suspect they never consulted with an attorney on this very critical decision,” Mitchell said. “And if they had, no taped conversations would have surfaced in their child custody suit, thus no violation of state and federal statutes.” Mitchell thinks the ex-husband might win the case in court. “The act of covertly installing a tape recorder inside a teddy bear took planning, management and countless hours of time all to collect shreds of evidence…. Even if his conversation proved he was pedophile, the evidence was obtained illegally and thrown out. Too bad they didn’t hire a professional investigator to prove their case against him.”

“If Dianna or Sam Divingnzzo recorded conversations inside their own residence, vehicles, or in the presence of William Duane Lewton this episode is a non-issue,” said Mitchell, whose firm conducts electronic debugging and countermeasure services in marital and custody battles. “But when you use any form of a recording device (without permission) to document conversations inside the residence of another is a classic case of “wire tapping.” 

In addition, Mitchell said wiretapping laws now prohibit videotaping. “With the inception and development of miniature cameras, our investigative industry must exercise caution” when using them. In one instance, his firm discovered an ex-spouse, no longer living with his wife, had installed spyware on his ex-wife’s computer before their divorce, “accessing all her electronic communications.” “We blocked his access and future invasion of privacy,” he said.

Mitchell pointed out that former Hollywood private investigator Anthony Pellicano is in federal prison for wiretapping. “His contempt for the law finally caught up with him,” he said.
 
“Over my career I’ve heard of and from desperate people repeatedly seeking short cuts to our legal system. They want to record their partner’s conversations as evidence. I encourage them to record the exchanges but only when they are part of the dialogue,” he said. The bottom line is simple: “Obtaining oral communications, without permission, violates our laws. We must continue to enjoy this legal protection and privacy rights,” Mitchell said.

To learn about the current laws regarding recording conversations, click on this link: http://www.rcfp.org/taping/   

 

For more information see www.la-familylaw.com

 

Effect Of Recession on Divorce rates

From Time magazine

Thursday, Oct. 23, 2008

Will the Market Kill Your Marriage?

By Belinda Luscombe

Recession and divorce, it is said, go together like carriage and horse. Those who labor in Splitsville have several explanations for why that might be. There's the lawyer theory, that money provides the soft fatty tissue that insulates the marital skeleton; once it's cut back and people get a good look at the guts of their relationship, they want out. And there's the marriage-counselor theory, that couples who were never quite on the same page in the checkbook finally get pushed off the ledger by endless bickering over their dwindling resources. And the therapist theory, that financial worries cause stress, stress can cause depression, and depression is a total connubial buzz kill.

"Recessions tend to raise divorce rates," says Nobel laureate and University of Chicago Graduate School of Business economist Gary Becker. "But you won't see a pandemic." Census Bureau figures show that over the past 2 1/2 decades, recessions have had only minor effects on divorce rates, which have been slowly waning since the early '80s after 20 years of steadily rising. Those trajectories have been influenced more by the rise of the women's movement and women's earning power, lower fertility and changes in divorce laws than by dour Dows. The only recorded spike in divorces in the past 75 years came right after World War II.

But the trend lines could change, Becker says, depending on the depth of this recession, striking as it does squarely at people's homes. With the financial baggage that many matrimonial vessels are hauling, it's not yet clear whether more spouses will jump ship or start bailing. What is clear is that everybody involved--from the ultra-wealthy to the completely broke, from family-court judges to therapists--has to figure out a new way to navigate.

The Rich, Who Are Different

Steven Eisman helps dissolve the unions of mostly wealthy clients in Nassau County, N.Y. In the traditional thinking about the recession-led split, non--wage earners "who were willing to stay in a less-than-perfect relationship become less willing once the credit cards are taken away," he says. But recently some lawyers have noticed that as stock prices have plunged, they've gotten inquiries from business owners and investors looking to unhitch now, with the idea that being poorer on paper will work to their advantage when dividing assets.

"In most states, the value of a business is part of the matrimonial pot of money that has to be divided up. Often, assets are set at the time of separation," says Neil Stein, partner at Stein & Glazer in Philadelphia. "I've had several clients come to me recently and say, 'I've wanted to get divorced for years but didn't want to give up half of my business. Now that my business is not worth anything, wouldn't it be a good time to do it?'" Conversely, some nonearning spouses of the very wealthy are also trying to game the nuptial market, attempting to lock in a higher rate in case the economy travels further south.

Sumner Redstone filed for divorce on Oct. 17, when his more than 16 million Viacom shares were at $18.85, down from $39.40 six months ago; his CBS shares had dropped about $288 million in value in the same period. Redstone and his wife Paula reportedly have a prenuptial agreement, so it's unlikely the market has much to do with timing, but Mrs. Redstone divorces a poorer man than she would have six weeks ago.

The Stuck-at-Homes

Among the nonwealthy, the two assets that typically need to be divided are 401(k)s and the family residence. But suddenly 401(k)s aren't worth as much, and that home whose mortgage was the mother of all argument starters is not an asset at all. It can't be sold--or at least not for a price that provides money to start over.

Instead of working out who owns what, lawyers and mediators are trying to figure out the fiendishly trickier conundrum of who owes what. "We're negotiating debts--not assets," says Henry Gornbein, a family-law attorney in Oakland County, Mich. "Two, three years ago, I'd be telling you that houses had equity, and you'd either be doing a buying out or selling the house and splitting whatever the proceeds were. Now it's the reverse. You go into court; the judges just don't know what to do."

In the face of this, some couples are attempting to tough it out. "The divorce rate is down in Michigan," says Gornbein. "People have no choice sometimes now except to return to the marriage." Others are choosing to separate or divorce but live together until either the house sells or they go stark raving barmy and will sign anything. A Boston lawyer tells of a woman who had a restraining order against her husband but was forced by economic circumstance to let him move back in. (Eventually they reconciled.)

The ex-as-roommate phenomenon is common enough that Virginia already has case law that governs what couples who are separated but living under the same roof may and may not do if they want the separation to lead to a divorce. Sex is definitely out, as is doing each other's laundry, shopping or cooking for each other and going on a date. Virginia, clearly, is not for ex-lovers.

The Teeterers

And then there are the couples who are contemplating divorce because of the strain the poor economy is putting on their poor marriage but think it's because of something else. John Coates, a Deutsche Bank trader turned Cambridge University researcher, measured the naturally occurring steroids in 17 British male traders over time and found high levels of testosterone during bull markets and of cortisol during volatility. Cortisol helps the body deal with threatening situations. But prolonged exposure to it, as during a lengthy downturn, makes people irrationally fearful, so when confronted with neutral situations--say, that their spouse would like the leaves raked--they react as if threatened. In other words, men can get funny when they're losing money. Even those who aren't traders.

Which brings us to cheating. Since no one has yet figured out how to do a National Infidelity Survey, it's hard to track, but experts warn it becomes more likely under stress. "Study after study shows that men deal with stress through escapism and women deal with it by talking," says Jill Brooke, a divorce expert who helps run Firstwivesworld.com "Online porn, massage parlors and escort services are cheaper and quicker than therapy, especially if you lost your health insurance." Often, since the men are operating under stress, they get caught. And often their wives can't bring themselves to take the Silda Spitzer--Elizabeth Edwards high road.

Apart from the ready access to high-speed online porn, what makes this recession different from others is that it's centered on real estate and thus on people's homes, which may explain why women are feeling more anxious about it than men are. In a survey released in October by the American Psychological Association (APA), more women than men reported feeling stress about money (83% vs. 78%) and the economy (84% vs. 75%). And women were more likely than men to say they had symptoms of stress--including irritability and weariness. Plus, their stress levels had risen more sharply over the past six months than men's. So it's harder for women to take up their traditional role as household comforter and easier for the wheels to fall off the whole enterprise.

There is some good news. A study that correlated Playboy centerfolds with market conditions found that men like fuller-figured women more in lean times than in boom times. The APA study showed that when stressed, women liked to eat. Bingo!

But aside from stress-eating, is there anything to be done if you'd rather the market didn't take your marriage down with it? A lot of counselors suggest sitting with your spouse and putting your fears on the table. If partner A does not know the full lay of the dire financial land, partner B should map it out while partner A makes a robust attempt not to scream. Then figure out how to address your liquidity issues as a team. All this honesty might even work as foreplay, suggests New Jersey sex therapist Sandra Leiblum, but if not, she recommends putting down the BlackBerry and reminding your spouse of something that's "free, burns calories, releases tension and creates bonds." Bonds that, luckily, can't be traded.

With reporting by Lina Lofaro

www.la-familylaw.com

Israeli Court: Husband who refused Get must pay damages

An interesting post from Jeremy Morley - an International Family Law Attorney: "The Jerusalem Family Court (Judge Ben Zion Greenberger) has reportedly ordered a husband who refused to give his wife a divorce for nine years to pay damages of approximately $160,000."Go to Jeremy's blog

Car Talk And GPS tracking devices on Divorce

Saturday August 16,2008. A woman called into Car Talk on NPR to say that she was in the middle of a divorce and she suspected that her husband  had planted a GPS tracking advice on her Ford Explorer. Click and clack’s advice was first take it to a local mechanic (not the one used by the husband) to see if there was device which would be easy to detect. The red flashing light would be a give-away. Then they explored the fun the wife might have “messing with his mind.”  Some of the suggestions were: leave her car out side his best friends house at night; re-attach the car to her clergyman’s car or place the device on a different car every day. Seriously, not only is this a criminal offence but it would backfire in a big way if it came out in the divorce. This prompted me to do a search where I found that a private prosecutor had been prosecuted for criminal tampering where he put a GPS device under a car for his client getting divorce in Colordo. Read article http://www.summitdaily.com/article/20080307/NEWS/186326399. Then I heard that Illinois Governor signed a law that allows the Court to tag domestic violence offenders with a GPS tracking device. http://www.npr.org/templates/story/story.php?storyId=93420266  As I was doing more research on GPS devices I came across this in Slate magazine: Involuntary GPS surveillance is spreading: 1) Companies are selling GPS devices to track lost Alzheimer's patients, as well as sensors that "sound an alarmwhen someone strolls too far." One company is implanting GPS chips in sneakers. 2) "Over 200 paroled burglars in Connecticut will be fitted with global tracking devices as part of the state's response to last month's horrific home invasion." 3) Mitt Romney is demandinglifetime federal GPS tracking of anyone who has used the Internet to commit a sex offense against a minor. Human Nature's question for Romney: If we're talking about the subset of perverts who do their prowling in cyberspace while sitting still in real space, doesn't it make more sense to track them on the Web? (Related column: Why felons should be grateful for GPS monitors.)

Top candidates for a GPS tracking device: 1) Senator John Edwards. 2) Tom Cruises career and lastly 3) The Russian Army. Suggestions welcome.

First Wives World

This is a great networking site for newly divorced women First wives world

When Bankruptcy Meets Divorce

From Forbes Magazine, Written by Marlene M. Browne Esq.
Link
Just over two years ago, President George W. Bush signed the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) of 2005, which became effective Oct. 17, 2005. If you are getting divorced, this new bankruptcy law could concern you. Reason: While you may not realize it, in this country, our high divorce rate and bankruptcy commonly intersect. Here’s how. Until the enactment of the BAPCPA, the bankruptcy process was seen by some, and used by many, as a tool to permanently evade (or, to use bankruptcy terminology, “discharge”) family obligations foisted upon them by agreement or court order after a marital dissolution. Plus, once a person filed a bankruptcy petition--for liquidation under Chapter 7 or reorganization under Chapter 13 (or, less commonly, Chapter 11)--he gained the protection of an “automatic stay,” preventing creditors from taking any actions against him, his income or his property to collect their debts.

If the “debtor’s” income was less than the sum needed to maintain his lifestyle, including debt service, he would generally opt for the Chapter 7 liquidation, taking advantage of whatever homestead and property exemptions his state allowed, thus protecting his assets from creditors. If any nonexempt property existed, the bankruptcy trustee would liquidate it to pay secured creditors first, with unsecured creditors, such as ex spouses (who lacked collateral or guarantees) at the back of the line.

While Chapter 7 liquidation was not a means to avoid a mortgage or shirk taxes secured by liens, it did provide the debtor a clean slate, free from pesky consumer debt--credit cards, loans from friends and family, legal or medical bills--and whatever equitable distribution payments he couldn’t comfortably afford. Plus, if a person happened to live in Florida, Iowa, Kansas Oklahoma, South Dakota or Texas, he could really make out like a bandit because these states had (and still have) limitless homestead--and generous property--exemptions.

Consequently, for the cost of a court filing and the administrative fees of the bankruptcy proceeding (the trustee’s fees, typically a minor percentage of the value of the “estate,” i.e., nonexempt property existing when the petition is filed), one could continue to own and enjoy, post discharge, a multimillion-dollar residence--provided he paid the mortgage.

On the other hand, if a person had sufficient income to pay his debts over time, but needed a breather to call off court actions and collection efforts--or he didn’t want to liquidate his nonexempt property (which, in the Atlantic Coast states, with little to no homestead exemptions, could be substantial)--he could file a Chapter 13 “reorganization” plan, allowing him to pay his debts (or some fraction of them) under a court-approved plan, over a period of three to five years. Once completed, the person emerged debt free, with a fresh start (and a blot on his credit report for 10 years). Still for many, the calculus of the decision made sense.

But that was then, this is now. Since Oct. 17, 2005, to automatically qualify as a Chapter 7 filer, you must make less than the median income in your state, given the number of people in your household. If your income equals or is greater than the median for your state, you still might qualify as a Chapter 7 filer, depending on whether you can afford to pay $100 to $166 per month, over the course of five years, to your unsecured creditors.

If you make too much money to qualify for Chapter 7, and you meet the requirements for a Chapter 13 (you have regular income and your secured debt is less than $922,975, and your unsecured debt is less than $307,675), you can seek relief from your creditors under a reorganization plan. After the specified three or five years of paying under the court-approved plan, you’ll have canceled debts without the typical tax consequences. No matter which Chapter you file under, BAPCPA requires that you obtain credit counseling and participate in special debt management programs.

Perhaps even more important than the means test and mandatory financial management education is the fact that BAPCPA has made it much more difficult for debtors to shirk domestic relations responsibilities. Unlike the old law (BRA) which, as amended in 1984, allowed debtors to discharge nonsecured property settlement obligations to former spouses (think payouts for businesses, professional practices, or other assets distributed in a divorce), the new law forbids this. Now, any domestic support obligation “DSO” becomes a “first priority claim,” ineligible for discharge.

Still, scholars see potential areas of abuse. If you have a property agreement or divorce decree wherein your ex assumes existing marital debt (outstanding credit cards run up during your marriage) and agrees to pay the credit card companies directly--“holding you harmless” in the meantime--beware. That obligation might be subject to discharge or reduced payment under the new bankruptcy law. Why? Payments made to a third party, i.e., someone other than, “a spouse, former spouse or child of the debtor” might not receive protection under the new 11 U.S.C. 523(a) (15). (For an excellent article on the details of this danger, log on here.)

On the other hand, any obligation undertaken in a divorce, owed to a third party and in the nature of support (say, an ongoing mortgage or auto loan) is probably safe from discharge under BAPCPA. Best idea: Insist on having your spouse pay old, nonsecured consumer debt, directly, from his--or her--share of money received from the sale of a house or distribution of other assets at the time of the divorce. A promise to pay is nice, but security (or cash) is king.

BAPCPA also provides “domestic support obligations” first priority status over other nonsecured debt. (But, this fact might not be as useful as it sounds as BAPCPA expands the reach and strength of secured creditors. So, it’s possible less will be left for all unsecured creditors, regardless of priority status.) Furthermore, the automatic stay provisions of the code no longer apply to divorce or support actions filed in state courts. Though you won’t be able to divide the debtor’s property, you will be able to address support, domestic violence and custody matters without having to appear in federal bankruptcy court to “lift” the stay.

Also, under BAPCPA, a bankruptcy filing won’t affect your rights to receive support via wage garnishment or other common collection means. Likewise, pre-filing payments of domestic support obligations to a spouse (so-called “pre-petition transfers”) won’t be “voidable” as preferential payments. Plus, per BAPCPA, no payment plan debtor will receive an order of discharge until he or she confirms that all domestic support obligations are current.

What’s more, BAPCPA requires a debtor to reside in a state more than 40 months before he or she files for bankruptcy protection to take advantage of that state’s exemptions; thus eliminating “forum shopping,” where debtors moved to states like Florida or Texas just before filing bankruptcy petitions, in an effort to convert nonexempt property into an exempt homestead, wiping out their nonsecured debt in the process.

So much for the debtor. As a DSO creditor in the age of BAPCPA, you will receive notice from the trustee of your rights to collect support through federal enforcement agencies. You will also receive the most recent address of the debtor, where he works and details about other affirmed creditors remaining after the bankruptcy action.

While BAPCPA can make life more difficult for those who have suffered from sudden unemployment, sickness or other misfortune, it’s probably the best thing to have happened to unsecured divorce creditors since 1898. Still, BAPCPA is recent law and courts have yet to settle all the issues arising from its new provisions. If your ex files for bankruptcy protection, consult with an expert. Ask how to protect your DSO (domestic support obligation) creditor’s rights by filing any necessary adversary complaints or proofs of claims. For instance, under a Chapter 13 plan, a debtor can still escape paying some, or all, accumulated support arrears, so you must be vigilant.

And, don’t forget to obtain copies of all the debtor’s bankruptcy schedules (disclosing his income, real and personal property, and the like). As BAPCPA provides the possibility of using exempt property to collect what you are owed as a nondischarged creditor, these schedules will be a rich source of useful information. Happy hunting.

Written by Marlene M. Browne Esq.
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