"The greatest discovery of all time

is that a person can change his future

by merely changing his attitude."

Oprah Winfrey

COMMUNICATING WITH THE JUDGE

Parties involved in a high conflict divorce/paternity case quite often believe that if they could just talk to the Judge privately and explain to the Judge how they feel and how evil the other parent truly is, then the Judge would give them what they want.

Some misguided parties actually call the Judge's office and ask to speak with the Judge about their case, and they are surprised to find out that the Judge's assistant will not connect them with the Judge because the Judge does not communicate with parties except in a courtroom with both parties present. 

Other parties will try to send the Judge a letter hoping to secretly tell the Judge their version of the case without the other parent knowing. The letter will be sent back unread by the Judge or the Judge will file it with the Clerk of Court without reading it, and take note of the parent who tried to have an improper ex-parte communication.

If the Judge does communicate with a party or both parties in writing, it is always with a Court Order.

If a Judge ever sent a letter to the parties (this will never happen), the letter would look something like this:

Dear Parents:

I am the Judge assigned to your divorce / paternity case. 

I hope to never meet you.  I assure you I will never meet your children. 

The only reason I have been assigned to your case is in the event that you cannot make your own decisions together or in the event that one or both of you act inappropriately by violating the law. In those cases, I have the authority to issue Orders telling each of you when you are allowed to see your children, dictating the terms of child support, property division, etc.

If my Orders are not obeyed, I may hold you in Contempt of Court and you may be sent to jail. 

I am surprised every day by parents who proclaim to love their children and who insist they are only trying to do what is in the children's best interest but then they allow me, a total stranger, to set the rules of life for themselves and their children because they are too angry or stubborn to work together with the co-parent to finalize an agreement so that the parents make all the decisions and I make none.

If you insist upon me making decisions for you after a trial, I assure you that both parties will probably be disappointed because the reality is that parents together will make much better decisions for their children than a total stranger.

I will not allow you to use me to punish the other parent, and I promise you, I will NOT be fair.  A Judge's oath requires them to follow the law, not be "fair" to a party.

Do not make the mistake of calling the children as witnesses to testify against the other parent or to tell me what a great parent you are. Do not put the children in the middle of your war.

Many parents make the mistake of insisting upon a trial so they can tell me how they "feel". They seem to think it important that the Judge understand their perspective. Believe me, I already know and understand your perspective if you are working hard to minimize the time the children spend with the other parent.  You are emotionally in pain. Your dreams of happily ever after have been crushed. Your vision of the future has been altered by your co-parent and your need to hurt your co-parent has overwhelmed your good judgment.

·       You are hurt when the children spend time with your co-parent because you suffer separation anxiety and you fear the children will love the co-parent more than you if they spend too much time with them.

·       You are overlooking the fact that children need and love both parents and, unlike the romantic love once shared by their parents, the children's love will not fade or disappear over time. The romantic love that did not endure was destroyed by incompatibility and the children's love is not dependent upon that factor.

·       You will claim that your motives are pure and you are only thinking about what is in the best interests of the children, but you are forgetting the fact that I will be enforcing the right of the children to spend time with their parents - not the right of the parents to spend time with their children.

·       Your anger and pain and the need to strike back will inspire you to try to convince me that your co-parent is unworthy of spending as much time with the children as you, but the Judge does not punish a parent because of their failures as a spouse.

The litigation process ending with a trial will leave scars on both parents and add to any hostility that already exists. You and your children will pay a heavy price if you go down that road. And be aware that a trial and Final Judgment is not even final. There can be rehearings and it can be appealed and later modified under certain circumstances. So if you are looking for "Justice" and "Fairness" and "Finality", you will not find it in my courtroom. 

I look forward to receiving a signed agreement rather than a request for trial.

                                                  Sincerely,

                                                  Your Circuit Judge

(This article was recently written by retired Attorney David Thomas.)

ALIMONY REFORM

The intent of the new alimony statute is to create guidance to Circuit Court Judges for consistent spousal support rulings.  It abolishes all types of alimony but for temporary alimony and final alimony.  There is no longer bridge-the-gap, rehabilitative, durational or permanent periodic alimony.  It does not address the availability of lump sum alimony.

The statute considers both ability to pay and need for alimony. It creates a low range for amount and duration and a high range for amount and duration, and it is presumed any Judgment within that range is proper. To decide where the Order should fall in that range, there are alimony factors for review (very similar to the existing alimony factors). To deviate outside of that range, the Judge must explain why the guidelines are "inappropriate or inequitable" and she must do so in writing. It is very important to note that this law applies to all matters pending as of October 1, 2016, and therefore if you have a trial in August, 2016 but is not ruled upon until October 2, 2016, this new statute would apply.

My initial calculations conclude it will save the payor money for a lower end long term marriage (17 years or less) with gross income differential between the payor and payee of $150,000.00 or less. On the other hand, it seems, but for the time duration, if the parties lived a semi-reasonable standard of living, the payor would pay more money in alimony (but not duration) for long term marriages of 25 years or longer, with gross income differential of $200, 000.00 or more.  I suggest you perform your own calculations (per the below formula) and apply the results to your opinion of average Circuit Court rulings.

The formula to determine the low end of duration is multiplication of .25 x number of years of marriage and .75 x number of years of marriage for the high end. 

To determine the amount of alimony, the low end is determined by multiplying .015 times the number of years married (not to exceed the number of 20 years married, even if married longer than 20 years), multiplied by the difference in gross income of the divorcing couple (either per month or per year, and if per year, divide by 12). To determine the high end, the multiplier number rises to .020, again with the maximum number of years for the multiplier at 20, unless if the Court establishes duration of the alimony award at 50% or less than the length of marriage, then the Court shall use the actual number of years of marriage up to a maximum of 25 years to calculate the high end of the presumptive alimony amount range.  Therefore, if the duration of the marriage is greater than 20 years, there is a possibility the "amount" multiplier for the high end range may increase to 25 years.

Two examples:

          1.       The Parties have been married for 18 years and have standard W-2 income. The wife makes $50,000.00 per year and the husband makes $150,000.00 per year. Therefore the low end amount / duration is $2,250.00 / 4½ years and the high end amount / duration is $3,000.00 / 13½ years.

          2.       The Parties have been married six years, and the wife has small business income of $75,000.00 per year and the husband has W-2 income of $60,000.00 per year. Therefore the low end amount / duration is $112.50/1½ years and the high end amount / duration is  $150.00/4½ years.

Please note the definition section has been completely reworked for gross income, potential income, underemployed, and many other definitions.  There is a presumption that if your marriage is two years or less, there shall be no Order of Final Alimony.  Also, imputation of income has been redefined along with the ability to order nominal alimony.  The taxability and deductibility of alimony has also been redefined, as has termination, modification and payment of the award. 

It is important to compare this alimony statute with the child support statute, as the child support does have a mechanism for deviation, as does this statute. However, experience concludes that Judges rarely deviate and apply the mathematical formula (either out of convenience or the Attorneys do not present sufficient requests and facts to the Court for deviation).  I would expect the same potential application of the alimony guidelines with a high end duration / amount based upon children and whether the payee is a stay-at-home parent/spouse, and toward the lower end if there are not children and both parties are actively employed.  Therefore, a rule of thumb / mid-range computation would be 0.0175 x the number of years of marriage (not to exceed 20 years) x the difference in gross income of the Parties, and I would expect negotiation to proceed above and below this rule of thumb amount.

One final note, although unrelated to alimony, it is important to note that the Statute has also entered a presumption that the Court shall begin with a premise that a minor child should spend approximately equal amounts of time with each parent, and to use this premise as a starting point subject to the Parenting Plan Factors.

OUR BUSINESS IS WORTH ??

The good or bad news is the value of your business is different for valuation in your divorce than if you and your spouse were happily married and selling it during your marriage.  If you are happily married and selling your business, you would sell it at an arm's length transaction (meaning no "hanky panky") and the price would be what you as a willing Seller accept from a willing Buyer.  For example:  your name is Mr. and Mrs. Joe and Jane Smith and you may own a restaurant known as Smith's Food and Grille, which you own the real estate of your restaurant.  You have a vibrant business and your husband is the main chef and he is known for his special recipes, and the manager/hostess is your husband's sister, who greets every customer when they come in the door, and therefore your restaurant is known for "personal" food because of your husband, and it's a customer's favorite restaurant because it is where they are known by the owner and his family.  You have agreed to sell the restaurant to another couple who will be taking over with the same plan, except that the wife will be the chef and the husband will be the host.  Your husband and his sister have agreed to work in the restaurant for six months during the transition so all the regular customers get to know the new owner at the door, and the new chef understands the recipes 100% so the food tastes exactly the same.  Therefore, because the building is worth $500,000.00 and based on the profit of the business, you have decided to sell the business for $1,000,000.00. Let's assume you sell the business for $1,000,000.00, you put it in a bank account, a year after that you get divorced, and assuming no "boutique" facts in your divorce case, the $1,000,000.00 is divided 50/50 between the two of you. Your husband received $500,000.00 and you received $500,000.00.  HOWEVER, if you are the wife and divorcing with the business intact, you would think that the value of the business would still be $1,000,000.00 and you would think you're entitled to $500,000.00.  This is INCORRECT.  The reason why is "divorce world" is much different from the "real world", either to your benefit or detriment depending on the particulars of the facts in your case; and based on the facts in this case that "personal" goodwill is what is deemed a non-marital asset (meaning you are not entitled to any of the value of the business related to your husband's personal goodwill versus "enterprise" goodwill, which is a marital asset, (meaning you are entitled to a presumptive one-half of that value).  Because the business is directly related to your husband's personal skill in the kitchen, and his sister would not continue working with any potential new owners (as the sister testified at her deposition) and your husband and sister have stated they would refuse to sign a "non-compete" agreement if the business was ordered for sale.  Further note, it is likely an expert would determine the real property value worth $500,000.00, but the value of the business is worth only the assets themselves (often referred to as "liquidation" value) versus "capitalization" income approach value, and therefore, the operating account, food in the freezer and miscellaneous equipment which is not fixtures, tables, chairs, etc., value at $50,000.00, then the value of the business is $550,000.00 and you would receive only $275,000.00 as the wife versus $500,000.00 if sold and then divorced.  Your husband has received a windfall of $225,000.00. 

This is a perfect example of how facts are different in "divorce world" versus "real world" and how it can be of the utmost importance to seek consultation with a divorce attorney if you feel a divorce may be on the horizon in order to understand what potential future fact pattern is in your best interest (and of course the best interest of your children) at the first sign of marital discord.

Namaste'