"Dumbass Ex"

"Dumbass Ex"

WE’LL SEE

This is a GREAT story to feel during your divorce. It is about a boy and a Zen master.

          “On his sixteenth birthday the boy gets a horse as a present. All of the people in the village say, ‘Oh, how wonderful?’

          The Zen master says, ‘We’ll see.’

          One day, the boy is riding and gets thrown off the horse and hurts his leg. He is no longer able to walk, so all of the villagers say, ‘How terrible!’

          The Zen master says, ‘We’ll see.’

          Some time passes and the village goes to war. All of the other young men get sent off to fight, but this boy can’t fight because his leg is messed up. All of the villagers say, ‘How wonderful!’

          The Zen master say, ‘We’ll see.’”

          Stop believing whether something is “good” or “bad.”  It is neither. Good/bad is merely a “spectrum.” Reality is your perception. As the Buddha stated, “live joyfully in a world of sorrow!”

          “WE’LL SEE”

ESCAPE

You have made your decision to separate (escape) from your spouse or you have made your decision with your Attorney to file a Petition for Dissolution of Marriage.  Unfortunately, based on economics today, many married couples must co-habitate in the same residence during the divorce (and for reasons advised by their Attorney other than economic) which I assure you is hell as a contested divorce, due to the financial crisis in the Judiciary creating a shortage of judges, may take 3 to 36 months. However, if you are able to move out from the residence based on your decision or the advice of your Attorney (because the other spouse is refusing to vacate the residence and you do not have the ability to obtain an immediate Court Order for their removal), PLEASE be acutely aware as follows:

1.       Until you vacate the residence,  your spouse will search every square inch of the house, your personal belongings, your automobile, your computer (beware of keystroke programs), your cell phone, your social media (Facebook, etc.) to ascertain notes, messages, texts, emails, money, etc. for many different reasons;

2.       You should obtain a replacement garage door opener and program it to the code of your opener to have access through the garage door as future entry into the garage and/or residence after you vacate. Your spouse may change the locks on the residence but often he/she does not remember to change the code on the garage door opener. If the residence is in joint names, you may obtain a locksmith to let you in at any time, but this is usually childish and dangerous. If possible, you should make copies of all keys to automobiles, residence, storage units, locks, etc.

3.        You should remove any item that is sentimental to you, i.e., grandmother's dish, photographs, gold coin from father, etc., in that any items that are sentimental that you leave behind may disappear and your spouse will allege that you took them with you and that you are the one who lost them. Because they are sentimental, your Attorney cannot obtain replacement items or compensation for fair market value versus if a television is missing, it is easy to ascertain the fair market value and obtain money for replacement. There is no way to replace sentimental items;

4.       You should remove all small items of high value, i.e., jewelry, watches, coins, stock certificates, bonds, etc. as again, if they disappear, your spouse will state that you have them and at this time there is conflicting testimony and the Court, unless the Judge makes a decision based on one person's credibility substantially outweighing the other person's creditability, the assets may not be distributed to either party;

5.       You should remove (or copy) all important documents, safe deposit key(s) and copy or upload to a secure Cloud all important information contained on any stationary computer hard drives (CPU) and any other music or social content;

6.       You should photograph or electronically record all items remaining in the residence and garage and create a master index of all tangible property left at the residence. Therefore, if any of the property is damaged or disappears, you may seek replacement fair market value of the property. Furthermore, you will need a master inventory for division of all tangible property during your dissolution of marriage, and this is a perfect time to make the inventory, or if you don't have time, you will have the pictures to prepare the inventory at a later time;

7.       If you have decided to take bedroom furniture and other furniture, please be aware the Judge will be reviewing the situation to determine if it was done in a fair manner.  If a Petition for Dissolution of Marriage has been filed by you or your spouse, there is a Standing Family Law Court Order and it more likely than not prevents you from removing property from the house. Always discuss removal of furniture and other large items from the house/garage with your Attorney before doing so. If you decide to do so either on your own or per permission of your Attorney, please be extremely careful in removing said items as if you are doing it without knowledge of your spouse and your spouse returns home during your move, it is an extremely dangerous situation. If you must move the items out without knowledge or notice to your spouse, make sure you do it during a time when you know your spouse will not be present for hours in the residence and that you have several adult witnesses with you to observe the removal and moving of the items. You may also notify your local police prior to the removal of items that you may need an officer to do a "keep the peace" check. I do not advise removing any large items that do not have sentimental value and have easy replacement value as the shock and trauma alone of removal of property to your spouse may cause unforeseen reactions from your spouse, as a spouse often reacts versus responds when confronted with relationship issues. Therefore, please do not do so unless you have discussed it with your Attorney and he/she has granted permission to do so or if it is absolutely necessary for you to do so;

8.       If you have a child, before you vacate the marital residence (assuming with the child) you must discuss the matter with your Attorney to make sure your moving out of the residence with the child does not harm any of your goals with regard to a proper parenting plan and time sharing schedule between you and your spouse;

9.       Removing any pets (dog, cat, spider, lizard, fish, etc.) must be pre-planned with regard to whether your landlord allows a pet. You will need the veterinarian records for upcoming shots, etc.  An appropriate message must be left for your spouse notifying your spouse that the pet was removed so that your spouse does not believe the pet has simply disappeared. Be very careful which pet(s) to remove as if your spouse is emotionally dependent on that pet, even though you are affectionate toward the pet, the pet should be with the person who has a greater emotional dependence on the pet;

10.   You should discuss with your Attorney which financial accounts to remove and transfer money. There are many reasons to remove sometimes less than one-half and sometimes greater than one-half of the money in checking/savings accounts. Financial institutions may need to be notified to put a "hold" on the account so your spouse cannot take any additional funds. Any cash should be removed from the residence, as again, if it disappears, your spouse will allege that you have it;

11.   You should discuss with your Attorney which credit cards, equityline and other debt accounts to cease your spouse's authorized use of or to terminate if in joint names, or if in joint names and you cannot terminate, a decision must be made whether to withdraw the remaining funds available to safeguard during the dissolution process.  Generally, if your spouse is not financially responsible you should remove your spouse as an authorized user on all your credit cards and notify the financial institution with an equityline, whether secured to real property or not, to "freeze" the equityline so that it is not maxed out by your spouse. This is a delicate decision as your spouse may be dependent upon certain credit cards and if their dependence on the credit cards is of essence for the day to day survival or raising of your child, then it may be wise not to cancel those credit cards;

12.   After you have vacated the residence, you should notify your neighbors that you trust (be very careful who you trust) that you are no longer living in the neighborhood and you would appreciate if they would keep an eye out on the residence as that way you will be able to receive updates on what is going on at your residence. If the residence is in joint names, you are welcome to stop by any time to review the caretaking of the residence as long as you are confident there will not be any domestic violence with your spouse when you are in the process of a "walk-through".

13.   You may want to install a "GPS" tracker on the automobile of your spouse if it is titled in your name, or your name and your spouse's name (joint names). Contact a private detective / "Spy" store or review the internet for devices and information. Tracking your spouse reveals many salient facts with regard to potential paramours, entertainment, etc.

These are several matters to consider when vacating your marital residence, but of course, these suggestions should be reviewed in detail with your Attorney as there are probably other issues to consider based on your particular facts of your marriage.

I wish you great adventure in your new experience, and I say

Namaste'

"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'