Sunday, March 22, 2009

Divorce is a Luxury in a Bad Economy 2

There are articles almost every week about divorce in bad economic times. I have been meaning to note the New York Times article on December 29, 2008 by J. Emilio Flores entitled "Breaking Up Is Harder to Do After Housing Fall" that I found particularly interesting. You can read the entire article at
One of my favorite lines is, "With nearly one in six homes worth less than the mortgage owed on it, according to Moody’s, divorce lawyers and financial advisers around the country say the logistics of divorce have been turned around. "We used to fight about who gets to keep the house," said Gary Nickelson, president of the American Academy of Matrimonial Lawyers. "Now we fight about who gets stuck with the dead cow."
As always, you can post any comment about this blog, Divorce Mediation, or Tucson Arizona by following the directions at the right in the green column or at the bottom of this website. Learn more about mediation at WM 3/29/09

Sunday, March 15, 2009

No Fault Divorce in Arizona

Just another of our many disagreements.
He wants a no fault divorce whereas
I would prefer to have the bastard crucified.
In about 1972 there was a movement to make divorce no-fault. Some states left fault in order to get a divorce or as a basis for determining the results of divorce. For example, New York requires fault to get a divorce but not to determine outcomes. Connecticut is just the opposite. Arizona did not require either. However, that may change. An article in the March 2, 2009, Arizona Star by Howard Fischer reports that "Adultery may be making a comeback in Arizona's divorce courts, along with a few other fault-finding concepts banished more than 30 years ago." See the entire article at He goes on to say "Legislation being pushed by Sen. Linda Gray, R-Glendale, would allow either party in a divorce case to introduce evidence of "misconduct" by the other spouse. The change made by SB 1206 would not affect whether a judge grants a divorce. The sole grounds for a court making that decision would remain that the union is "irretrievably broken." But it would remove a prohibition against judges considering "marital misconduct" when it comes to child support, dividing up community property and alimony, or spousal maintenance." The article goes on to quote Maricopa County Superior Court Judge Colleen McNally, who presides over the Family Court Division who questioned the need for a change. Judge McNally said, "the law already allows a court to consider "waste," where one party has burned up a marital community's assets...When you get to the point of child support, I don't understand that connection. If nothing else, the legislation, if enacted, would turn what are supposed to be fairly routine court hearings into longer, more-involved arguments. You're really inviting the parties to start bringing up who had the affair first and all these other issues It's really going to expand the litigation. What's worse is that those accusations will take away from efforts by Family Court judges to get the parents to focus on the children. Turning hearings on child support into forums for charges and countercharges regarding who was wrong "really has a negative effect on the kids."
What do you think about fault in divorce cases?
As always, you can post any comment about this blog, Divorce Mediation, or Tucson Arizona by following the directions at the right in the green column or at the bottom of this website. Learn more about mediation at WM 3/15/09

Sunday, March 8, 2009

Non-Divorce Divorce or Separating without Divorcing

Couples are not getting divorced at the old rate. I realized that couples must be making informal agreements on how they will proceed with their lives. I assumed this would be called a non-divorce divorce. I learned a long time ago that someone else has usually come up with this before me. I test this theory with Google. I googled non-divorce divorce and came up with 54,000,000 results. The number four result was an article entitled "The Non-Divorce Divorce" by California attorney Kayla Boucher Horacek. . You can see the article at;Non-Divorceandquot;-Divorce&id=495010#. Her contact information is Kayla Boucher Horacek, c/o Law Offices of Donald P. Schweitzer, 201 South Lake Avenue, Suite 700, Pasadena, California, 91101, 626-683-8113
I have decided that we can help these couples by mediating their no-divorce. Over the years, I have already done this with couples who did not want to get divorce for emotional or health insurance reasons. I look forward to mediating more of these cases.
Kayla has said it better than I could so I have reprinted the entire article below.

The "non-divorce" divorce is a mutual verbal agreement between two married individuals who want to keep their marriage in tact, but fully accept that the relationship is over. The goal is to feel divorced while continuing to live together and not get a divorce. In other words, the couple does not want to go through the divorce process, but they don't want to reconcile either. They don't want to hire attorneys, file papers, argue over custody or support, lessen the time their children see either of them, or lose one-half of their financial assets. So, they decide to remain as if they are married. They live in the same family home as roommates, participate in their children's lives as they had before they wanted a divorce, and maintain/preserve the marital estate.
Of course, most couples who attempt the "non-divorce" divorce are those who have children and/or those that have been married a considerable period of time and do not feel it is beneficial to disrupt the community on an emotional or financial level. Or at least they feel that the costs of a divorce clearly overshadow the costs of remaining together-even when there is no love left.
I cannot speak to the negative psychological effects that could result from this "solution." However, I can certainly speak to the negative legal effects and problems that could arise.
First, if you never decide to separate in family law terms (that is, one party making a conscious decision that the marriage is irrevocably over and communicating the intention to end the marriage), there is never a date of separation. The "date of separation" is important in family law because it marks the end of the community. From that date there is no longer a collection of community assets or community debts-instead, a spouse's separate property and debts begin to accumulate, as they did before marriage. Your spouse will continue to be entitled to one-half of all of your property and you will be liable for one-half of your spouse's debt. Therefore, if you are both managing your finances separately without full disclosure and mutual agreement, you could be adversely affected. What's more, your spouse will continue to be entitled to all benefits they were when you were happily married, including possible rights to the family home, life insurance, devises/gifts from a will or trust, and health insurance, to name a few.
The determination of a long term marriage (which can yield indefinite spousal support) is also associated with the date of separation. For example, if your marriage is eight years in duration, and you attempt a non-divorce for 3 years, followed by a real dissolution, the court's characterization of the marriage as long term will probably be contested and require substantial litigation.
Living as financially independent roommates could also present a problem with expenses. Unless you agree to distribute both of your respective incomes in a way that benefits the community, one spouse may not have enough to support his or her lifestyle. Regardless, if you are still residing in the family home with your spouse, the courts will not grant any spousal or child support. Since you have avoided going to the courts entirely, a support award is virtually impossible anyway.)
In the same way, no child custody or visitation orders will ever be established. This means that after attempting the "non-divorce" divorce for a year or so, and after resorting to the real thing, a parent may have a hard time making a case that he or she should be the primary custodian. This is because even if one parent is the primary caregiver during the non-divorce, this fact will be hard to establish if both parents were living in the same home all the while.
For the aforementioned reasons, the non-divorce presents significant legal problems. Spouses who try this "solution" cannot be guaranteed that one spouse will not attempt to obtain a legal divorce down the road. If this occurs, a spouse will not be afforded some of the protections that a traditional divorce provides. In order to ensure that you make an educated decision, you should speak to an attorney who specializes in family law matters. He or she can point you to two potential solutions-a post-nuptial agreement or a legal separation. Both options will cost some amount of fees and time in mundane paperwork, but will allow you to live whatever lifestyle you want with protection and peace of mind.

I also found the following video:
As always, you can post any comment about this blog, Divorce Mediation, or Tucson Arizona by following the directions at the right in the green column or at the bottom of this website. Learn more about mediation at WM 3/8/09