The Smart Divorce® Weblog

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Considering divorce? Good reasons to wait for January

By Geoff Williams

Fri Dec 21, 2012 11:43am EST

(Reuters) – Going through a divorce during the holidays can be emotionally wrenching, which is why many people don’t do it – they put it off until January.

“People don’t want to upset the apple cart over the holidays, and they want a peaceful Christmas, Hanukkah or New Year’s. And then, because they don’t want to spend another damned year with that spouse of theirs, as soon as the holidays are over they pull the plug and file,” says Alton Abramowitz, president of the American Academy of Matrimonial Lawyers.

While there are no hard numbers on how many divorces are filed in January, Abramowitz says it’s undoubtedly a popular time to act, rivaled only by September, when marriages break up after the summer holidays. Yet waiting for the holidays to pass doesn’t all come down to simply wanting a harmonious holiday season. There are sound financial reasons to wait until January.

1. Waiting for the bonus

A husband or wife who waits until January is likely to be entitled to any year-end windfall that might come from a spouse’s job.

“In New York, at least, once you file for divorce and you set the cut-off date, anything you obtain afterward is separate property,” says Steven Goldfeder, a matrimonial attorney in New York City who acknowledges that year-end bonuses are often fought over, even if a spouse declares he or she wants a divorce in January. “Someone could claim the bonus isn’t really for that particular year, but a payment to entice someone to stay at the firm for the future.”

2. Cool your emotions

The holidays are a time when emotions run high. “If your spouse always has it in her mind that Christmas was ruined, she or he may not be so eager to settle with you,” says Goldfeder. “Your divorce might drag out for months or years longer than it would have.”

Once, shortly before Christmas, Goldfeder received a call from a client who said a co-worker had had a baby they both believed was his. The client, married and the father of three, planned to tell his wife and assumed she would leave him. Goldfeder talked him into first getting a paternity test. The client’s family had a nice Christmas, and the day after, the client learned he wasn’t the father.

Not exactly a warm holiday tale, but by cooling your emotions, you may save your family a lot of stress.

3. Avoid disastrous shopping

December is the shopping season, and that can spell disaster if an angry spouse is set loose with a credit card. “The spouse served with divorce papers may feel that they deserve some kind of emotional gift because of this horrible thing their spouse did to them,” says Kevin Worthley, a certified divorce financial analyst and certified financial planner in Warwick, Rhode Island.

An angry spouse may also be more inclined to want to drain the bank accounts and run up the credit cards. “That’s a danger any time, but past the holidays, when everything’s been bought, there’s likely less inclination to buy a big-ticket item out of revenge,” says Worthley.

4. Think about April

At year-end, taxes come to mind. “Obviously, the better records you have, the better position you’re going to be in,” says Andrew Katzenstein, a Los Angeles lawyer, referring to paperwork that you might want to start collecting now.

Katzenstein, who specializes in assisting high-net-worth individuals, businesses and charities, says that in the past there haven’t been many tax advantages to filing for a divorce in January rather than December. Filling for divorce is just a beginning step, after all. Many couples end up filing their taxes jointly until the divorce is completed.

But tax brackets may go up in 2013, depending on whether the U.S. budget dispute is resolved. So going forward, the calculus may be different. “The person who pays alimony will get more bang for their deduction buck, and the person receiving the payments will pay more taxes,” he says.

5. More time to plan

If you’ve made up your mind that a divorce is going to be one of your New Year’s resolutions, there are things you can do now. Whatever side you end up on — paying alimony or receiving it — you need to start preparing.

“You should start collecting all of your end-of-the-year statements,” says Worthley. “You really need to know everything — your household budget, your assets, what’s in your checking account, how much you’re paying for the mortgage, all of your debts and your credit card balances. It’s important to get all of that.”

Your financial records will be needed to determine how much spousal support will be paid out, and how the finances will be divided. “The more information you get, the less complicated it’ll be when you’re negotiating and working things out with a financial mediator, attorney or judge,” says Deborah Moskovitch, a divorce coach in Toronto who counts January as her busiest month for new clients.

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Getting through divorce while saving time, money – and your sanity.

Introducing The Smart® Divorce Resource Toolkit

The Smart Divorce® Resource Tool Kit is now available, order yours today– one easy phone call or email, to get this valuable resource.  It’s one of the  most comprehensive programs providing a full overview of the divorce process — and endorsed by judges, lawyers, and mental health professionals.  The Smart Divorce Resource Toolkit will help you make smart decisions for you and your family – taking you through the entire divorce process, removing the mystery and misconceptions about the outcomes of divorce, how to cut down on your legal bills and so much more.

This comprehensive resource  provides an understanding of all aspects of the divorce process; helping you understand the two sides to your divorce – the “emotional divorce” and the “legal divorce”

Move through your divorce with focus, hope and confidence.

The Smart Divorce Resource Toolkit makes the divorce process easy to understand, helping you to be strategic while making sound, smart decisions.  After all, information is knowledge and knowledge is power.

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Included in The Smart Divorce Toolkit are tips, strategies and ideas, packaged as never seen before.  This smart toolkit comes with:

The Smart Divorce Resource Toolkit is designed specifically to meet your needs — to help reduce stress, educate and inform you about the divorce process in a cost effective, easy to understand way. Guidance and information from leading family law lawyers, mental health professionals, and parenting experts well versed on the needs of those in the divorce process are included.  And, it’s put together in one smart package, making it uncomplicated, and effortless to understand.

The Tool Kit contains 4 CDs covering the myriad of issues, concerns and questions most people have about divorce – removing the mystery, complexity, and confusion about divorce.  Also included are Smart Guides which add another layer of detail to The Smart Divorce Audios, and provide a step by step plan for going through the divorce process.

The Smart Divorce Audios. 

These unique and informative CDs provide tips and strategies to help navigate this difficult time, educate listeners about the divorce process and provide practical information on getting through it with focus, hope and confidence.

  • Audio 1 – The Emotional  Divorce
  • Audio 2– The Legal Divorce
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Tip sheets that support the information in the audios providing detail and understanding of the specific topic.

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  • Getting Your Finances Organized for Divorce
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  • Coping with Stress in a High Stress Environment
  • Understanding Your Divorce Options
  • Finding a Good Divorce Lawyer
  • Smart Co-Parenting
  • Living Separate and Apart
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Custody and Access – what’s the difference?

The terms custody and access have been getting a lot of attention in the media recently because of the open court room of the Christie Brinkley/Peter Cook trial.

It’s amazing how many clients have come to my office questioning the difference between custody and access for their children. There is a significant difference and it’s important to understand what they mean to help you with planning your child’s best interests when it comes to decision making and visitation.

The Globe and Mail ran an interesting article today on the evidence parents use when it comes to a battle – which is something you would rather avoid.

Click on this link to read the article:exhibit-a-his-3rd-grade-diorama-tralee-pearce1

What’s the difference?

Parents have both rights and responsibilities concerning their children. They must make decisions regarding their children’s health, education, and religion; support their children financially; and provide their children with a home. During the divorce process, however, the terms used to describe these rights and responsibilities can get confusing. Concepts often get mixed up, and definitions vary. As a result, parental expectations can become unclear.

In addition, the legal terms used by the lawyers, judges, and other professionals can sound so cold and clinical that they are difficult to hear. The experts may not refer to you as “parents” but as your children’s “decision makers.” Instead of discussing the time you have to spend with the kids, they may talk about “access.” I have never ever heard parents refer to their parental authority or to time with their kids in such detached ways. Nonetheless, it is important to understand these terms.

Custody

Custody refers to who has the legal authority to make decisions regarding a child’s health, education, religion, and so forth. Generally speaking, custody does not establish residential status or access (visitation rights); those specifics are usually determined by the parenting plan (described below)

Joint custody means that both parents retain legal decision-making authority. If parents with joint custody have a problem coming to a decision about the child’s best interests, this can be resolved by a parenting expert such as an arbitrator or parenting coordinator.

Sole or full custody means that only one parent is given decision-making authority over the children, usually because it would be too difficult for the parents to make these decisions together. Needless to say, if you have sole custody, you must be especially careful to act in the best interests of your children.

The Parenting Plan

The parenting plan is an agreement between divorcing parents that clearly defines how each is to continue caring for his or her children following a separation. The goals of the parenting plan are to encourage the children’s relationship with both parents and to protect the children from parental conflict. It can also be used as an intervention tool to help parents disengage from one another. Parents often fear losing control or being controlled, and a specific, structured plan can help quell those feelings.

The parenting plan provides a comprehensive schedule of each parent’s access to the children, outlines his or her co-parenting responsibilities, and establishes his or her role in parental decision making. The particulars of the plan depend on the relationship between the former spouses, each parent’s relationship with his or her children, and, of course, the children’s needs. It can be very detailed, and it may address questions.

The parenting plan can configure the residential arrangement in a variety of ways. In some families, children split their time fifty-fifty between their mother’s home and their father’s. In other cases, the children live most of the time at one parent’s home, which is called the primary residence; that parent is called the primary residential parent. The other parent, called the secondary residential parent, may have the children on select weekends and perhaps one day a week, and maybe on alternating holidays. There are, of course, many different ways to configure parental responsibility, and there is no right or wrong method.

Divorce is the dissolution of the legal contract between a married couple. It means the transforming of a family, not the ending of a family. When parents separate, it is better to think of the family as reorganized instead of broken. Everyone still needs each other. How parents handle the changes that occur because of the reorganization will have a direct effect on how well the children and parents fare after the separation. While change is often difficult, it doesn’t have to be destructive. It makes sense to get psychological support during such trying times. There are a lot of mistakes that don’t have to happen if parents are informed of the best way to solve their issues.


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Developing Your Separation Agreement

Considering All the Divorce Options

Did you know that there are options to arriving at your separation agreement? Going into my divorce, I didn’t realize there were any options. Maybe I watched too much TV, but my perception was that everyone went to court and litigated–went to trial before a judge. I was completely wrong. I didn’t understand that litigation is not the preferred method of resolution. All lawyers would agree that in most situations, it is the method of last resort; it usually signals a breakdown in negotiations outside the courtroom. The other options besides litigation are called alternative dispute resolutions, or ADRs.

The best-practices thinking is that ADR ought to mean

“appropriate dispute resolution,”

of which litigation is one choice.

Understanding each ADR process is vitally important. Although no one should walk into a lawyer’s office and immediately say, “I want dispute resolution X”–lawyers evaluate which dispute resolution process to pursue based on the nature of the problems and issues–being aware of your choices can help you maintain control and contribute to making decisions with confidence.

Which option provides the best outcome?

All of these modalities can produce either a good outcome or a bad one. Mediation, arbitration, trial–nothing about them, alone, predicts either a good or bad outcome. All carry variables such as a good judge or a bad judge, a good mediator or a bad mediator, a good lawyer or a bad lawyer.

There are five ways to come up with your separation agreement without going to court. You should be well informed about these when considering the best way to arrive at your separation agreement. Why does this matter? It matters because it’s not always about going to court.

The truth is, there is no such thing as revenge in divorce, the only thing you will get are legal bills.

What are your choices and options?

  • Do-it-yourself
  • Negotiation
  • Mediation
  • Collaborative family law
  • Arbitration
  • Litigation

Which Option Is Right for You?

Even choosing which dispute resolution option to take can become a fight for a divorcing couple. Don’t invest yourself in particular outcomes. Your goal should be as reasonable a dissolution of your marriage as possible under the circumstances. You do not have–and you will not be able to get–complete control of the options or of how the other side acts within them.

A good lawyer will emphasize that it is extremely unlikely that anyone is going to walk away having won completely. I’ve been told by many lawyers that they make most of their money from clients who are stubborn. But many lawyers also say that they would accept slightly lower fees for easier clients, even if they have to take on more clients to make up the difference.

Information about dispute resolutions and more is covered far more comprehensively in The Smart Divorce: Proven Strategies and Valuable Advice from 100 Top Divorce Lawyers, Financial Advisers, Counselors and Other Experts. Available wherever books are sold, amazon.com, amazon.ca, barnesandnoble.com and many other webseller book sites.