Archive for the 'Family Law' Category

Are Military Divorces Unfair Compared to Non-Military Divorces?

Are there differences between a military divorce and a non-military divorce?

Although there are some differences between the two,  the procedural process between a military and non-military divorce are fairly similar and fair to both sides.

What are the Differences In a Military Divorce?

Procedurally, the process is the same in a military divorce as it is in a non-military divorce. However, there are different factors that can affect the outcome of a military divorce in a way that it wouldn’t in a non-military divorce. A military divorce will mainly affect:

  • Where the divorce is filed,
  • How child support is calculated,
  • Custody and visitation decisions, and
  • Pension rights and other military benefits.

Where a divorce is filed is always based on the proper jurisdiction and where the parties reside. It gets tricky when a military spouse is on active duty in a different jurisdiction than a non-military spouse because, in most cases, the case must be filed where the military spouse is domiciled. Military Divorce

Military service members can be sanctioned, including separation from military service, for not complying with a court order directing child support. Military divorces are slightly different in this aspect because child support is always calculated based on income, which for a military member, can include more than just a base pay. Most states will require a military service member to include basic pay plus any housing or other allowances (even if they’re not taxable) for purposes of calculating child support based off income.

The main difference that may arise in terms of child custody and visitation is when a military spouse frequently moves. The biggest difference does come in the form of military pension/ retirement rights and other military benefits, but it’s not written in a way that’s unfair to military servicemen and women.

Let’s Break It Down a Little Further

The Uniformed Services Former Spouses Protection Act (USFSA) doesn’t require an automatic lifetime award to an ex-spouse. Any award that is given does terminate upon remarriage of the ex-spouse and the amount is calculated based on a court order, rather than a certain fixed amount. The Act also requires the parties to meet certain marriage and military service requirements to be eligible for any spousal benefits.

One of the most important aspects of the Act is that states may treat military retirement pay and pension as property, rather than income. Long story short, that just means states can divide a military pension the same way it could a non-military member’s retirement. States will divide marital property accordingly between the spouses per that state’s division of property. That can be anything from an equal division of assets to a 40/60 split.

Further, ex-spouses of military members can be eligible for other military benefits like commissary, exchange, and medical benefits. These are not automatic benefits and certain requirements under the “20/20/20 Rule” must be met. The couple must have been married for at least 20 years at the time of divorce, the military member must have performed at least 20 years of credible service, and the ex-spouse was married to the member during at least 20 years of the member’s credible service.

Each state has their own laws when it comes to property division in a divorce; some have community property laws while other have equal distribution laws. What the USFSA does is make it possible for states to divide retirement the same way it would any other marital property. This isn’t necessarily a bad thing and it makes sure military divorcees are essentially treated the same way as non-military divorcees.

Pennsylvania Just Made Divorcing an Abusive Spouse Easier

Currently, most states either have no-fault divorce laws where no blame can be placed upon either spouse or laws that require proof of fault that can draw out the length of the divorce process. Prior to the passage of the bill, Pennsylvania’s no-fault law required mutual consent for the divorce to proceed—if one party refused to give consent, the other party could be forced to wait up to 2 years before the divorce could be finalized by a judge. The state does have a fault-based divorce option as well, but that process can be expensive and takes longer if there is no agreement.

Governor Tom Wolf signed House Bill 12 (HB 12) into law, effectively changing the way courts will handle divorce cases involving domestic violence. Essentially, the victimized spouse will be treated the same as a couple that has mutually consented to a divorce—presuming consent from an abusive spouse—which means there will be a minimum 90-day (versus 2-year) waiting period before finalization.  Additionally, the law will prevent any court-ordered counseling that can typically be required and lengthen the process. Help and support signpost

The bill came from abuse victim advocates, who urged legislators to change the law.  In 2014, Pennsylvania alone had over 32,000 citizens filing protective orders for domestic violence.  Pennsylvania’s law allowed an abusive spouse to drag out a divorce  up to 2 years, which only encouraged a continued pattern of abuse.  Even if the abuse isn’t physical, prolonged waiting times during the divorce process can leave room for further emotional and mental abuse.

No Fault and At-Fault Laws Play a Major Role

Every state has laws on the books that allow a party to file for a no-fault divorce (think “irreconcilable differences” or “irretrievable breakdown of the marriage”).  Some are considered purely no-fault while others are called no-fault but require consent from both parties. The latter is where Pennsylvania’s law falls and what ultimately led to the push for new legislation.

Currently, 17 states and D.C. have purely no-fault laws. Most of the time, these courts don’t care why you’re getting divorced. Pure no-fault laws don’t require the filing spouse to prove fault on behalf of the other spouse. This prevents any issues that may prolong a divorce because one spouse disagrees with the divorce entirely.

Although some may consider domestic abuse in terms of property distribution, most will only consider it in circumstances that the domestic abuse caused any economic fault of marital assets. Despite the fact that most courts can’t legally consider abuse as a factor, it definitely provides a certain degree of shock value in favor of an abuse victim and, ultimately, that could always sway a judge’s decision in favor of an abuse victim on a property award.

The remaining states are similar to Pennsylvania and these types of laws can lead to a breeding ground for continued patterns of abuse.  Requiring abuse victims to 1) definitely prove a pattern of abuse or 2) obtain consent from an abusive partner is unreasonable.   Abusive interactions are 70 times more likely to result when a spouse is leaving an abusive spouse—the change couldn’t come soon enough.

The good news is that every state, regardless of varying law, will take domestic abuse into consideration when deciding things like child custody and visitation.

Will Others Follow Pennsylvania’s lead?

Senate Bill 2418 was recently struck down in Mississippi. That law would have added domestic abuse as grounds for an at-fault divorce, which is not currently listed within any of the 12 statutory grounds. Republican Senator Sally Doty plans to reintroduce the bill in the next session in the hopes that it will pass next time with a few changes.

Most state laws regarding consequences for domestic violence pertain to criminal charges, protections for child custody and visitation, and orders of protection. However, many states do not lay out specific abuse laws when it comes to divorce and domestic violence.

According to the National Coalition Against Domestic Violence, 1 in 3 women and 1 in 4 men have experienced some form of physical violence by an intimate partner—that number likely would only increase when mental and emotional abuse is included in the equation.  With Pennsylvania taking the lead, others with stricter at-fault laws may be soon to follow.

How Can Your Foreclosure Affect You?

No one wants to foreclose, but it happens if you fall behind on your mortgage payments and have no way of catching up. While you want to move on from the whole experience, your credit score won’t let you.

A foreclosure can hit your credit up to 300 points, and if you’ve missed several mortgage payments before filing for foreclosure, it can negatively impact your credit score even more. A foreclosure appears on your credit report as of the date you file, not the date of sale. It stays on your credit report for seven years.

Besides carrying around the foreclosure on your credit report for years, what other affects can foreclosures have on your life?

Foreclosures and Family

After the housing bubble burst in 2008, foreclosure rates increased substantially. Many families lost their homes to foreclosure. Foreclosure Sign

Studies demonstrate that families who faced foreclosure saw their earnings fall more than families who did not experience foreclosure. After one earner lost his or her job, foreclosure was nearly inevitable. Moreover, families who lost homes to foreclosure were more likely to seek government assistance programs for support. They also tend to double up or share their home after filing for foreclosure, but before the house is sold.

Bankruptcy and Foreclosure

If you are contemplating bankruptcy, you may also be facing foreclosure. If you fall three months behind on your mortgage payments, it may be beneficial to think about filing for bankruptcy to avoid foreclosure. Although financially, bankruptcy is considered a “last-resort” option, it can hold off creditors, including your mortgage company, while you’re sorting out your financial troubles.

Bankruptcy only prevents foreclosure in some cases. If you file for Chapter 7 bankruptcy, it means you don’t have the financial means to pay any of your bills. In that regard, the bankruptcy releases you from your obligation to pay your debts. However, Chapter 7 bankruptcy does not prevent foreclosures. While your obligation to repay is released, the lien on the house isn’t canceled because it serves as collateral if you cannot repay. With Chapter 7 bankruptcy, the homeowner often surrenders his or her home.

Chapter 13 bankruptcy gives the debtor an opportunity to work out a new agreement with the lender. Lenders can come to an agreement with the debtor consisting of paying off the late payments and late interest for up to 5 years as part of a new loan agreement. If you can pay the new loan payment and make all your payments on time, after the five years are completed, you can keep your home.

It is important to note that while bankruptcy and foreclosure have a negative impact on your credit, foreclosures remain on your credit report for seven years, whereas bankruptcies remain for ten years. Nevertheless, creditors look at foreclosures more seriously than bankruptcy that don’t include a house.

Foreclosures and Your Estate Plan

If you inherit a house that is behind on its mortgage payments or already in foreclosure, you have a couple options. Assuming the homeowner is behind on mortgage payments, the person to whom the house is left does not have to accept the inheritance or the debt associated with the property. If the beneficiary can’t afford the mortgage payments, insurance or maintenance, the beneficiary may disclaim the property and it would be passed to the next person designated. If no one claims the property, the home would likely go into foreclosure.

If the house is going into foreclosure, you want to make sure the house is not in your name and is still the property of the estate. If it is in your name, the foreclosure will affect your credit. If not, it has no bearing on your credit. In that case, the estate may be responsible for the deficiency judgment.

Foreclosure and Divorce

Financial problems are cited as one of the leading causes of divorce, so it should come as no surprise that foreclosures and divorce often go hand-in-hand. If you’re behind on your mortgage and going through a divorce, you must figure out who is responsible for the mortgage debt.

Many couples take out their mortgage and hold title jointly. In that case, both parties are responsible for the debt. However, if either spouse holds title in his or her name alone, that spouse is solely responsible for the debt and is the only person the bank may pursue for any deficiency judgment after a foreclosure.

Michigan Approves Law Preventing Rapists from Obtaining Child Custody

It is the stuff nightmares are made of: the victim of a rape being traumatized all over again by being forced to do battle with her rapist over custody of the child born of the rape. This issue motivated the Rape Survivor Custody Act, which was passed by Congress in May 2015. Disturbingly, it is not uncommon for rapists to seek custody of their children conceived from rape, even while awaiting trial for the assault on the child’s mother.

In fact, before he committed suicide in prison, kidnapper Ariel Castro sought visitation with the child he fathered with Amanda Berry, one of the women he held captive and raped for years. Judge Michael Russo denied the request, stating “I just think that would be inappropriate.” However, at that time, Ohio had no laws which would deny Castro’s parental rights because of his assault on the mother of child.

It is understandable that such indignities would cause outcry and a call for change. However, well-intentioned laws aiming at preventing rapists from obtaining custody of children may wrongly deprive some defendants of due process and keep some children from knowing their fathers.

The Rape Survivor Custody Act and the Origin of Senate Bill 629

Last year, Congress approved the Rape Survivor Custody Act, which provides money to states to pass laws denying parental rights to the fathers of children conceived as a result of rape. Recently, with overwhelming support, Michigan passed just such a law. In December 2015, the Michigan Senate unanimously approved Senate Bill 629, which was introduced by Republican Senator Rick Jones.

Jones, who spent 31 years in law enforcement, called upon his own experience working with victims of sexual assault in introducing the bill. “Sometimes it’s an acquaintance rape, they don’t wish to bring charges and put the person in prison; sometimes the victim simply doesn’t want to go through the criminal trial.” Child

A reading of the text of Senate Bill 629 reflects the specific outcome it aims to prevent. The bill states that, when the mother of a child conceived of rape applies for public aid, a claim for child support from the biological father is triggered. This then presents an opportunity for the rapist to manipulate his victim by using the support dispute to pressure the victim to drop criminal claims against him. Or, he may use the dispute as an opportunity to assault and traumatize the victim all over again.

The decision of a rape victim to carry a baby to term, or choose to have an abortion, is also inextricably linked to this debate. In his support of the bill, Jones said, “I’ve actually heard of horrible cases where the rapist contacted the victim after they heard that a child had been conceived and said: ‘Get an abortion, and if you don’t, I will be going for custody.’”

How Senate Bill 629 Lowers the Evidentiary Standard

Previously, under Michigan state law, a court could terminate parental rights only once the father was convicted of sexual assault in criminal court. Senate Bill 629, by contrast, allows the family court to terminate parental rights upon petition by the victim to the family court.

A notable change that Senate Bill 629 implements is the lowering of the evidentiary standard. Previously, a conviction of sexual assault required that the prosecutor show guilt “beyond a reasonable doubt.” This means that there is a great likelihood that the accused committed the crime. While courts are hesitant to attach percentages to this standard, many believe that “beyond a reasonable doubt” means 90%, 95%, or even 99% confidence that the accused committed the crime.

Senate Bill 629 lowers the evidentiary standard to “clear and convincing evidence.” Under this legal standard, the evidence must be substantially more probable to be true rather than to be untrue (51% to 60%). This is a significantly lower standard of evidence, especially considering that the stakes, loss of parental rights, are high.

Will this Law Have Unintended Consequences?

While the motivation for laws like Senate Bill 629 are understandable, there may be unintended consequences as a result of this law and those like it.

Lowering the evidence standard means that a person accused of rape may have his parental rights terminated without being convicted of a crime, or without the benefit of a trial. That being said, rape is a notoriously under-reported crime, and the procedure surrounding rape trials is known to be extremely difficult on the victim of the crime. For this and other reasons, it is estimated that only 1 in 5 rapes are reported. However, an attempt to circumvent and alleviate a difficult criminal process for the victim of the crime may threaten the procedural safeguards put in place for the criminal defendant by the Constitution.

For example, if proceedings are held in family court, it is unlikely the accused will be provided free representation by an attorney, a right only guaranteed in criminal court. A lowered standard of proof may also run the risk of misuse or abuse by the accuser, which could result in a father losing parental rights as a result of the mere allegation of rape—which perhaps he did not commit. It is also unclear if this law applies in the case of statutory rape, which could lead to inequitable results.

Senate Bill 629 also raises questions whether the family court is the appropriate forum for these decisions. The roles of the criminal and family courts are vastly different. Family court does not consider guilt or innocence, and is not intended to be a penal system.

Also notably absent is the voice of the minor child. Disputes in family court involving child custody are held to the “best interests of the child standard.” This standard prioritizes the wellbeing and development of the minor child over the parent’s desires. Arguably, it may be in the best interest of a child to be protected from a father who seeks to victimize his mother.

However, an unintended result of Senate Bill 629 and similar laws may be that children conceived of rape are denied the future ability to decide to have a relationship with his or her own father—however difficult that decision may one day be.

Removing Permanent Alimony for Divorcing Floridians a No Go

A previous blog discussed Florida’s child custody bill that would have started divorcing parents on equal ground in a custody battle with a presumption of 50/50 custody. Governor Rick Scott, who expressed creating a promise of equal custody would put the needs of the parents before the child, vetoed the bill.  The equal custody provision of the bill got more media attention. However, an even bigger portion of the bill was aimed at removing Florida’s current law regarding alimony.

Currently, Florida allows permanent lifetime alimony. Supporters of the alimony reform want to replace permanent alimony with formulas to calculate an award that would result in a fixed end date based off the length of the marriage and the spouses’ respective incomes.

Florida Judges Have Broad Discretion to Determine Who is Entitled to Alimony, the Amount, and For How Long the Alimony Can Last.

When determining whether to award alimony, the court will consider:

  • the standard of living during the marriage,
  • the duration of the marriage,
  • the age and the physical and emotional state of each party,
  • the financial resources of each party, including the nonmarital and marital assets and liabilities distributed to each,
  • the earning capacities, educational levels, vocational skills, and employability of the parties,
  • the contribution of each party to the marriage, including services rendered in homemaking child care education and career building of the other party,
  • the responsibilities each party will have with regard to any minor children they have in common,
  • the tax treatment and consequences to both parties of any alimony award, and
  • all sources of income available to the party.

Sounds fair, right? Well, the presumption for long-term marriages, 17 years or more, is that any determined award of alimony is permanent. It’s a rebuttable presumption, so the court can disregard the presumption. Nonetheless, that’s not a burden the breadwinning spouse should have to endure. Alimony

Under the vetoed alimony reform, alimony would have had an end date, rather than an indefinite time frame. Although the current law already requires judges to take the above factors into consideration when considering an award of alimony, the reform would have taken away the discretional decision-making component and required the number to be calculated based off the formula, and thus, resulting with a fixed end date.

Current Law Allowing Lifetime Alimony Is Unfairly Applied

It’s geared at stay-at-home parents, usually the mother, who could not easily re-enter the workforce. Florida’s rationale behind alimony is that they, as a state, don’t want to support the impecunious spouse. Instead of forking up the money via welfare and food stamps, legislative intent is to look to the breadwinning spouse to provide for the non-breadwinning spouse.

Spouses are expected to maintain the same standard of living that was held during the marriage, but, in reality, that’s an insane standard. That assumes divorcing spouses will not remarry and will not inevitably have to support another spouse or 2 separate households. Had a stay-at-home spouse never gotten married and had kids, that spouse would have had to learn to support themselves. Marriage ending in divorce should not be an equivalent to a lifetime financial contract.

Additionally, many spouses are forced to work longer than they normally would have, not being able to retire, because they can’t afford to make alimony payments otherwise. How is that fair?  Current law allows spouses to ask for reductions in their alimony payment for retirement purposes, but it’s often overlooked.

Is There a Better System?

A parent that sacrifices their ability to have a career to stay at home and take care of their kids is great and, don’t get me wrong, should be given an award of alimony, but requiring an indefinite award seems excessive.

Using a formula to calculate an amount with a fixed end date seems like a more reasonable system than a permanent award, as it allows the spouse time to get back on their feet without forcing a breadwinning spouse to work beyond retirement age just to afford alimony payments. While I agree with the intent of the alimony reform bill, how the formula plays out in actual divorces may be a different story and I think there’s room for improvement.

Other than lengthy marriages that involve a stay-at-home spouse taking care of children, I don’t see a useful purpose for including length of marriage as a hard factor into the formula. While it should be considered, especially if the couple had only been married for a short amount of time, 17 years of marriage shouldn’t automatically equate to an alimony award—the length of the marriage shouldn’t be weighed as heavily in calculating a figure.

Need should be the #1 factor in the formula, as using a basic pre-determined formula may unfairly hurt the paying spouse. Earning potential, education, children, cohabitation or re-marriage, among other factors, should all definitely be considered. An exacting formula may not be the best answer and that’s why allowing judicial discretion is important, but there definitely needs to be some hardline rules or ways to incorporate formulas that won’t unfairly punish the paying spouse by requiring lifetime alimony.

Florida’s current guidelines aren’t bad; it’s more the execution of allowing lifetime alimony awards that’s hurting breadwinning spouses. With the veto of the bill, it’s unclear whether any kind of alimony reform will happen in the foreseeable future.



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