Collaborative Practice Marin
How to Increase the Cost of Your Divorce


Many people recognize that if they “lawyer up” by hiring the most litigious attorneys that they are asking to have a very expensive adversarial divorce.  Saving money is one of the reasons (but hopefully not the only reason) people often choose to do a collaborative or mediated divorce.  Yet, even in these non-adversarial processes, the attitudes you adopt and the actions you take can make a modest-cost divorce into a much more expensive one.

Behaviors that increase costs:

  • Being impatient with the process - because impatience actually slows the process down
  • Trying to wrest control of the process from the professionals you have hired to help you
  • Procrastinating on getting your homework done
  • Cancelling appointments at the last minute
  • Showing up at meetings without the information and documents you were asked to bring
  • Refusing to get the emotional support you need, like using a divorce coach or therapist, to navigate this very emotional time in your life
  • Listening to “street talk” from your friends and family rather than relying on your divorce professionals
  • Breaking trust by taking unilateral action regarding your assets that will surprise and scare your spouse
  • Withholding information after requests to produce it

Attitudes that increase costs:

  • Focusing on the past and trying to even the score in your divorce
  • Trying to get paid back for your past compromises in the relationship
  • Diminishing and blaming your spouse repeatedly during the process
  • Needing to be seen as being and doing things all “right” and your spouse as all “wrong”
  • Refusing to acknowledge that you also contributed to the breakdown of the marriage
  • Seeking revenge and wanting to punish your spouse
  • Focusing on what you don’t want instead of getting clarity on what you do want
  • Engaging in tit-for-tat – going low when your spouse goes low
  • Refusing to see that your spouse has a legitimate perspective
  • Thinking that if you see your spouse’s perspective that you have to give up your own

You always have a choice about what actions you take and the mindset you adopt.  The choices you make will impact how long your divorce takes and the final cost.  If you are feeling very reactive and overwhelmed, then seek out a divorce coach or therapist to support you through the emotional currents of the divorce process. 

Nancy J. Foster, J.D. is an attorney-mediator, trainer and Exec. Director of the Northern California Mediation Center in San Rafael.   

Photo credit: Ann Buscho, Ph.D.

Do I Need a Premarital Agreement?

 

            A very frequent question I am asked in my practice is do I need premarital (or sometimes referred to as a Prenuptial) Agreement.  A premarital agreement can be important to someone for a variety of different reasons.  The first important aspect of deciding whether you want or need a premarital agreement, is to understand what such an agreement can accomplish and address.  A premarital agreement can address things like:

 

•           how you are going to treat assets and debts that each of you bring into a marriage (examples include real property, retirement assets, inheritance, student loans, support you pay for a prior relationship); 

 

•           how you want to treat assets your earn or are gifted to you during the marriage (this can include compensation, bonuses, stock option grants, inheritance, etc.);

 

•           how you are going to pay your day to day bills;

 

•           do you want to pay each other spousal support (or do you want to limit it in some way);

 

•           do you want to provide for each other in your estate plans;

 

•           do you want to make gifts to each other;

 

            A premarital agreement can be a very positive experience for a couple when it is approached openly and collaboratively.  The objective of a premarital agreement, in my view, should be to address both parties needs and concerns going into their marriage in a way that allows a couple to (1) start their lives together with a solid foundation of being able to talk to each other about difficult topics and (2) find their own solutions.  Often, people's needs and concerns arise from their past experiences (fears that arise from their parents bad divorce, their own bad divorce, or pressure from their families). 

 

            My feeling is that a premarital agreement should be something that is created together, addressing your respective needs and concerns, and reflecting who you are as individuals as well as who you want to be as a couple starting your lives together.  Such an agreement can help a couple set their expectations going into their marriage and allow them each to express how they visualize their marital partnership.

 

            If you decide you do want a premarital agreement, your next step would be to meet with a family law professional to talk about how to best go about creating a premarital agreement and the different processes and professionals you can utilize to help you.


Lissa Rapoport is a family law attorney in San Francisco and Marin County.  lrapoport@lpslaw.com

Photo Credit: Ann Buscho, Ph.D.



A Brief Overview of Collaborative Law


Thank you to Brad Reid and the Huffington Post for this blog article.

Collaborate law is a variation of non-adversarial alternative dispute resolution. Specific collaborative law techniques have been discussed for about thirty years and fifteen or so states have enacted the Uniform Collaborative Law Act of 2009. While primarily focused on family law and divorce, collaborative law may be utilized in other disputes such as employment, insurance, mergers and acquisitions, or issues between family members in closely held businesses. Always consult an experienced attorney in specific situations.

In broadest overview, the parties voluntarily sign a collaborative participation agreement and are represented by attorneys whose representation ends if a traditional contested judicial proceeding begins. While participation cannot be court ordered, courts retain authority to issue emergency orders to protect health, safety, welfare, and financial interests. Attorneys must make a full disclosure of the advantages and disadvantages of collaboration in the specific situation so that a client may make an informed participation decision. There are limited institutional exceptions to the end of attorney representation when a free legal services clinic or governmental entity is involved in the collaborative representation. The parties agree to disclose all relevant and material information (although the agreement may limit the scope of disclosure) and promise to exercise good faith while negotiating. Disclosed information is deemed privileged and may not be utilized in subsequent litigation, subject to modification by the collaborative participation agreement. Exceptions to disclosure exist to prevent bodily harm or a crime, abuse or neglect of a child or adult, and to address professional misconduct or malpractice. The parties may engage appropriate professional experts to assist in the dispute resolution process. Courts may enforce an agreement that does not meet all of the formal requirements in the interest of justice when the parties intended to engage in the collaborative process.

Collaborative law, unlike arbitration under which a third party makes a binding decision, leaves the decision to the parties themselves. “Coaches” may facilitate direct communications. Unlike much alternative dispute resolution, collaborative law is pre-litigation. Hence, it may be less emotionally draining and more relationship preserving. The most serious criticisms of collaborative law center on attorney disqualification. Critics are concerned with potential attorney withdrawal at the very moment (litigation) when attorney services are most needed. An additional criticism is that collaborative law adds another layer of time and expense to disputes that end in litigation. However, attorney codes of ethics uphold the attorney withdrawal provisions and advocates of collaborative law assert that litigation rarely results at the end of a collaborative process. It is additionally asserted that privacy, control of the process by the parties themselves, and the individualized situational based aspects of the process are significant benefits.

Psychological and sociological knowledge underlies collaborative law. The following several paragraphs provide a few of many basic concepts. Fear of the collaborative process is perhaps best overcome by trust that is created by individual self-awareness and mutual self-disclosure. However, creating trust is hard work and the personal relationships may already be so damaged that trust, hence collaborative law, is impossible.

Additionally, the parties themselves may be at various points in the familiar progression consisting of denial, anger, bargaining, depression, and acceptance. There may be non-party individuals that have a high degree of unrecognized influence over the parties. Controlling parents, new boyfriends or girlfriends, and friend confidants are examples.

Furthermore, one must distinguish an individual’s interests, positions, and goals. Interests are concerns or matters of importance that drive persons and they may be unrecognized emotions such as sadness, anger, or shame. Skilled advocates help their clients develop self-knowledge and understanding that leads to attainable goals. Inquiring about “what you assume will happen,” “what is your expectation,” and “precisely what will that look like to you,” are recognized techniques to get beneath the surface.

Individuals may engage in irrational, self-sabotaging behaviors due to projecting their problems on others so that they avoid changing their behavior, defensive habits, creating excitement or chaos to override depression by stimulating the body’s physical chemical responses, and to acquire status or approval from others. Sometimes deeper psychopathology may be present that creates real risks of physical harm to themselves or others.

The parties must have common ground rules for negotiation and the attorneys themselves must be self-confident centered persons who are able to manage their own stress as well as the unique stressors of the particular situation. Professionals must be prepared to address such expected problem areas as an individual’s resistance to disclosing needed information or delaying the process either consciously or unconsciously.

Professionals must be able to recognize “transference” and “countertransference” when feelings are unconsciously redirected from one person to another. Self-knowledge, relying on facts not opinions, and discouraging posturing and positions are all helpful professional techniques. Initial meetings and the collaborative participation agreement set the stage for everything that follows. Common courtesy, mutual respect and constructive negotiations are vital to success. Certainly, however, collaborative law is not possible or even best under all circumstances.

Thankfully, an individual professional need not know and be everything as a collaborative team is likely. Particularly in family law and divorce situations, a variety of financial, wealth management and tax experts may be involved. Ideally the transparency of the collaborative process will allow efficient data collection and the development of and commitment to mutually beneficial financial goals and commitments. However, non-financial professional assistance in the form of child and adult therapists, addiction specialists, as well as family, friends, and clergy may be of equally important. The expectation is that professional individuals will bring their best neutral professional judgment to the process.

In broad conclusion, collaborative law is advocated as cost effective and relationship oriented and has spread globally. There are a number of professional organizations and training associations. These organizations may overlap and cooperate with family advocacy and mental health groups. Courts have been creating both local and state-wide rules to govern the collaborate process. Minimum professional training before one may practice collaborate law is frequently required. Consult an experienced attorney to determine the status of collaborative law in a particular state.

Collaborative law aligns with a recognizable movement to make legal services and dispute resolution more accessible and cost effective. Standards for attorney and non-attorney professional specialization, for example, licensed legal technicians, are developing. The “unbundling” of legal services so that attorneys are not required to personally engage in every client encounter, much like the current activities of a physician’s assistant or nurse practitioner, are the contemporary trend. Additionally, a host of specialized courts that have non-traditional powers and may grant unique remedies or divert parties to extra-judicial entities are increasing. Individual just-in-time services provided in a multidisciplinary package are coming to law. Increasingly, it appears that in the long-term the Anglo-American adversarial system of justice, while not totally replaced, will be reserved for certain unique problem areas. Even criminal law, uniquely adversarial, is not immune from these developments.

This comment provides a brief and incomplete educational overview of a complex topic and is not intended to provide legal advice. Always consult an experienced attorney and other professionals in specific situations.

Brad ReidSenior Scholar, Dean Institute for Corporate Governance and Integrity, Lipscomb University
Photo Credit: David Buscho

Has Collaborative Divorce Resolution Reached the Tipping Point?


You are faced with an enormous initial decision when you face divorce.  Unless you choose otherwise, litigation is the default.  However, more and more couples are choosing to divorce without going to court, by mediating or collaborating.  Collaborative Law is rapidly becoming the norm, as Gary Direnfeld, LCSW, writes in his blog:

For years, family law litigators were the go to persons to facilitate the distribution of property, support obligations and the plan of care for children of the relationship between separating couples.

Mediation was always a distant alternative to the go to of family law litigators and hence the moniker, alternate dispute resolution.

Beginning the in the early 1990’s and gathering a head of steam into the new millennium and now an unstoppable force, Collaborative Law is biting the heels of mediation.

However, when looking at Google searches, Collaborative Law and Mediation combined as so called alternate dispute resolution solutions are closing in quickly on the family law litigators. As of Sunday, February 21, 2016, Google searches revealed:

Family law litigator: 35,600,000 hits.
Collaborative Law: 12,500,000 hits.
Family law mediation: 21,000,000 hits.

Given the head of steam rising from mediation and Collaborative Law, I would predict that they soon will surpass family law litigation, at least in terms of combined Google hits.

When Mediation and Collaborative Law surpasses family law litigation, which will then be deemed alternate and interestingly, Australia has long since deemed the so-called alternate dispute resolution solutions primary, at least since 1975.

This change in approach to dispute resolution is no minor thing. Given the rise of the so-called alternatives, people at the same time are becoming increasingly aware of the ravages of litigation particularly contrasted against the less costly and more peacemaking outcomes of mediation and Collaborative Law.

It may not just be a sea-change in terms of how people seek to resolve family conflict, but the sea change might also spell the death knell for litigation. Oh sure, there will always be those few who march towards court, but even there, couples are increasingly redirected to resolving matters in the hallowed halls outside the courtroom only returning to have their mediated agreements converted into orders for enforcement purposes. Many are realizing that they may as well begin where they are likely to end up – in mediation, even if going to court.

There’s a definite change a’coming. Indeed it’s here. The only question now is the depth of change and whether litigation will actually survive.

Are you looking to resolve a family dispute. Get with the times. Look at mediation and Collaborative Law.

Gary Direnfeld is a social worker. Courts in Ontario, Canada, consider him an expert in social work, marital and family therapy, child development, parent-child relations and custody and access matters. Gary is the host of the TV reality show, Newlywed, Nearly Dead, parenting columnist for the Hamilton Spectator and author of Marriage Rescue: Overcoming the ten deadly sins in failing relationships. Gary maintains a private practice in Dundas and Georgina Ontario, providing a range of services for people in distress. He speaks at conferences and workshops throughout North America. http://www.yoursocialworker.com

photo credit: Ann Buscho, Ph.D.

How Do We Divide Up Our Stuff in Our Divorce?

People often become paralyzed when it comes to dividing their personal property (household furniture, furnishings, sentimental items such as wedding gifts, photos, children's artwork, etc.).  It is certainly one of the harder issues to contend with for families that are separating their homes because often there is much emotion attached to items accumulated during the course of a relationship.    

            While there are many ways to divide these items, if it is possible and manageable for them, it may be in their best interest both emotionally and financially to try to find a way to divide these items themselves rather than pay their professionals to become involved.  I have seen many families navigate these issues constructively and thoughtfully when given a structure that works for them. 

            People often find the issue of how to value items challenging as well.  It is often very difficult to put an economic value on emotional attachments.  From a legal perspective, the value is generally thought to be what they could reasonably expect to get for an item at a garage sale or on Craig's List.  

            The first step for couples is often to create a comprehensive inventory of the items that need to be discussed and divided.  Sometimes these lists can be created together.  In the alternative, each person can create their own list.  If one person has been out of the family residence for a period to time, they may need to go into the residence to refresh their memory in order to create their inventory.  It is also helpful to identify items that either person may feel are their "separate property" (either owned prior to the relationship or gifted during the relationship).  Also, if each person can identity the items they wish to retain and the items they do not wish to retain, often this can reduce the items that require discussion.  

            As to any items that require discussion, if after thoughtful discussion an agreement cannot be reached, when all else fails, a tried and true method that people can utilize is alternating selection until all items have been allocated.  There are also creative ways to address some of the more emotional issues.  For example, parents can create a sharing agreement that allows them to retain certain sentimental items related to their children with an agreement that the items "belong" to the children and will be returned to the children at some point.  Photos, videos and artwork are also often a difficult issue.  Today there are many ways to copy such items so that each person can retain copies of these items.  At the end of the day your "stuff" is an important part of a separation or dissolution and should be treated thoughtfully.


Lissa Rapoport is a consensual dispute resolution attorney with offices in San Francisco and San Rafael.

Photo credit: Ann Buscho, PhD.


My Wife Had an Affair—Do I Have to Pay Her Alimony When We Divorce?

Your feelings around your spouse’s infidelity are natural, understandable and important.  Feelings of hurt, anger, betrayal, shock, rage, and grief are to be expected when one’s partner has been unfaithful.  Your feelings around the affair, whatever they may be, are in the room while we are negotiating, and we have to acknowledge and deal with them if the negotiations are to go smoothly.   Your feelings are important to you—so if we ignore your feelings, you will feel like something vital to you is not being addressed.

At the same time, because California is a no-fault state, it is important to remember that it is not the purpose of legal solutions to remedy emotional wrongs.  When it comes to spousal support, also called alimony, the law is concerned with questions such as the recipient’s need and the payor’s ability to pay, not whether the recipient deserves support on account of his or her past behavior.  That is not to say that your feelings about the affair are not important.  Rather, it is a question of how and where to deal with those feelings.

Our approach to dispute resolution in a divorce provides you and your spouse a safe place in which you can voice your feelings and feel heard by the other.  By addressing your feelings directly, you and your spouse create the possibility of an emotional resolution—whether that is an explanation, an apology, forgiveness, or just being heard—something the law cannot provide.  In this way all of your concerns—legal, financial, and emotional can be meaningfully addressed.


Steve Sulmeyer, J.D., Ph.D. is a divorce coach and mediator in Marin County.  steve@stevesulmeyer.com


Photo Credit: Ann Buscho, Ph.D. 

What Happens to My Inheritance in a Divorce?

The simple answer is the inheritance belongs to the person who inherits it.  It is their separate property.  However, as with most things, this question is not as simple as it may seem. 

Often inheritance comes in one form, say money, and is later used to purchase something else.  Or, sometimes, it comes in the form of personal property.  As an example, if your grandmother left you a piece of jewelry, that jewelry belongs to you and is your separate property.  However, if you sell that jewelry and use the money to, for example, contribute toward a down-payment of a house purchased with your spouse - what happens then?  Now the answer is not as simple.  

During the course of a marriage, people often make choices as to how they want to use their resources, often focusing on the needs of their family or partnership.  But, when it comes time to uncouple, they may rethink their prior choices.  People may also change their intentions when facing a divorce.  

If the inheritance was used to pay for living expenses, as example, that money is gone and unless you and your spouse agree otherwise, it would not be reimbursable.  

If you take your inheritance and use it to buy something with your spouse, you may be able to ask for a reimbursement of that contribution--if you and your spouse can agree or if you can effectively "trace" the use of the inheritance through records, such as canceled checks, that show the trail of the inheritance.  If you received an inheritance and you believe it was used to purchase something with your spouse during the marriage, the first step would be to review your records or obtain any records you don't have as soon as possible.  This will help you better understand your concerns so that you can consider how best to approach this in the process of your divorce.

 

Lissa Rapoport is an attorney practicing in Marin County.  You can learn more about her here:  http://www.collaborativepracticemarin.org/members/Rapoport

www.lpslaw.com

lrapoport@lpslaw.com


Photo credit: Ann Buscho, Ph.D.

How Can I Figure Out my Post-Divorce Expenses?

How do I complete the expense portion of the Income and Expense Declaration?  When I will be the one moving out and want it to reflect my true needs?  It may seem scary and daunting when looking at a blank legal form!  Let’s make it easier for you. Here are some tips to help you get it done well.

  • Start by researching rents for the size home in the location where you want to live.  Or if you plan to buy a new home, call a mortgage broker or visit your banker for their ideas of your needs for a down payment, current interest rates, and likely monthly payments. 
  • Review several months’ worth of checking account and credit card statements for utility charges such as phone, internet, gas and electric, water, cell phone, alarm service, and Cable TV.  If there is a wide fluctuation in monthly charges for each category, average several months worth to get a better sense of a needed amount.
  • Consider the difference in home sizes and those who might also live with you to determine if these amounts need to be revised upward or downward.  Think about calling a utility company to ask for average charges based on location.
  • For other costs such as groceries, restaurants, hair appointments, gasoline, child care, dry cleaning, laundry, manicures, etc., think about how many times per week or month you incur each of these expenses and about how much you spend each time.  Then if you have a firm weekly amount, multiply that amount by 4.5 weeks to arrive at a monthly figure.
  • For irregularly paid expenses that you might pay once, twice, or maybe four times per year for such expenses as property taxes or auto or property insurance, review the invoice and divide by the number of months of coverage.
  • For all other expenses, estimate to the best of your ability.  For peace of mind, take your completed draft form to a divorce financial professional who can issue spot expenses you may have overlooked and help you feel comfortable that you have included all items.

Going through this exercise will empower you with the knowledge of your financial needs.  It may seem like an overwhelming chore before you start, but you will be glad to have the information when you finish.

Judith F. Sterling is a CPA, Certified Divorce Financial Analyst, and Collaborative Financial Specialist practicing in Sonoma and Marin Counties.  

Photo Credit: Ann Buscho, Ph.D. 

How Long Will My Divorce Take? (I want to get it done fast!)

How much time will your divorce take? By the time you reach the decision to divorce, or accept your spouse’s decision, you probably want to get it done and over with! Why prolong this difficult and overwhelming process?

Well, it’s a little complicated. There are a few answers to your question.

  1. Once you and your spouse file and respond to the divorce “petition” the “clock starts running.” Legally, the soonest you can terminate marital status (finalize your divorce) is six months plus one day. The reason is that sometimes a “cooling off” period helps people decide if the divorce is what they really want. So, if you could get all the other divorce-related tasks done, then you could be divorced in six months.
  2. The reality is that divorces often take longer than six months to complete. One reason might be that you could save money in taxes by finalizing your divorce this year or next year. A Certified Divorce Financial Analyst or your CPA can help you figure out the tax consequences of waiting or finishing up sooner. You will have to file and cause your petition and summons to be “served” by the end of June to finish up this year. You would then file as a single person or head of household this year.
  3. Another reason your divorce might take longer is that your situation might be complex financially. If you have assets, debts, a business, retirement savings, pension, income from various sources such as stock options, etc., your financial situation may not be as simple as you think. A financial professional may need to help you sort it out. The law requires that you and your spouse have a full and complete understanding of your finances, and often one or the other of you needs to be “brought up to speed.”
  4. You and your spouse will need to work out a parenting plan if you have children. This important task will help your family recover and heal when the divorce is over. You both love your children, but you may have different ideas about how you will co-parent when you are in two households. It can take some time to develop a plan that fits your children’s needs, your work schedules, your life style, and more. This is not a task you should rush through, as it is an investment in your children’s future mental health, success in school, social experience and life. A divorce coach and child specialist can help, support and educate you about your children’s specific needs and how to soften the impact of the divorce on them.
  5. Delays in the divorce process are often caused by emotional factors. Conflict, arguing, uncooperative behaviors, evasive or hostile tactics will cost dearly in both time and money. Grief, sadness, anger, depression, and other emotions get in the way of making good decisions during the divorce, and this is a time when you will need to think clearly and carefully about your decisions. In fact, emotions might be the most costly part of your divorce, and it is well worth your time to do the emotional work you need to do before you begin to negotiate your divorce. A therapist or divorce coach can help. Often people turn to attorneys first, but divorce is an emotional process, more than a legal one. Find the emotional support you need before you start.

Your divorce will inevitably be a stressful event, but you will get through it. You should take the time you need to complete the divorce, without rushing through the important decisions you will need to make. If you would like it to be an efficient and less costly divorce, you can control some of the costs and time by doing these things:

  1. Be prepared emotionally. Get the support you need and take care of yourself.
  2. Prioritize your children’s needs. Your child specialist can help you with this. Work with your divorce coaches to develop a realistic parenting plan.
  3. Find a way to reduce the conflict between you and your spouse. Turn to your divorce coaches for help. Working with a divorce coach will make your divorce go much more efficiently.
  4. Be prepared for meetings. Complete the various assigned tasks required, such as collecting financial records, disclosing all financial information, and contacting any necessary outside professionals (realtors, health insurance companies, etc.).

Doing your divorce quickly is less important than doing it well. A good divorce is one that leaves you, your spouse, and your family on the path to a new, healthy, and stable life. A good divorce means that you and your spouse can continue to communicate in a friendly way, and that reduces stress for your entire family. And a good divorce is one that is emotionally and financially efficient.

--Ann Buscho, Ph.D. is a Collaborative Divorce Coach and psychologist in Marin County. http://www.collaborativepracticemarin.org/members/Buscho

photo credit: Ann Buscho, Ph.D.

The Positive Outcomes of Divorce

For many, the word “divorce” conjures up negative thoughts and impressions. We gasp: “what about the kids? I thought they were happy? There go the holidays.” No one wants to be part of those statistics, but many of us are or will be. So, how do we surpass the social and psychological hurdles of this transition to realize the positive outcomes of a divorce?

The decision to end your relationship and get divorced is a difficult one. The process can be fraught with emotional stress and interpersonal conflict.  To make things worse, any positive attitudes one may have related to this change are often overshadowed and dismissed as inappropriate or unhealthy. However, cognitive behavioral therapy provides us a unique insight – balancing negative thoughts alongside positive thoughts is a sign of good mental health. 

If you are considering divorce or recently divorced, here is a glimpse of the bright side of your decision:

Positive Attribute #1: Positive modeling for your children

By choosing to end an unhappy relationship, you teach your children an important life lesson: people change. Although change can be difficult, it is an integral part of our natural and social world.  By being a positive model for change, you are teaching your children how to cope in tough situations and helping them understand the complex nature of relationships.

Positive Attribute #2: Your physical health will improve

Research shows that telomeres, small areas at the end of chromosome strings protecting your DNA molecules, shorten or die off as you age or when under stress. This shortening process is associated with premature aging, cancer and a higher risk of death. However, you can reverse this process and restore these vital cells through improved lifestyle changes and healthier relationship living,

Positive Attribute #3: You will learn about yourself

It is common for people to wonder “Why me?” when considering or going through a divorce. This process of self-reflection is a critical step in understanding your psychological make-up and to perhaps avoid the experience again. Entering counseling, talking to a trusted friend, or conducting your own soul searching are ways to truly connect with your deepest inner self and help you transition.

Positive Attribute #4: Your mood will fluctuate, but on your terms

Mood management is very hard for some and especially challenging if you are leaving a situation in which your mood was subject to the mood of another person. After a divorce, your mood may fluctuate – but at least it will be your mood yours to control, and yours only.

Positive Attribute #5: Self confidence

Divorce can be complicated, messy, and very emotionally taxing. Once you survive the transition, you will feel alive with the confidence that you made a decision to better your life. This esteem will lead to a sense of empowerment and deep self-knowledge that you are in control your happiness.

--Erika Boissiere, MFT, is a licensed marriage and family therapist, specializing in couples, relationships and marriage therapy. She is the founder of The Relationship Institute of San Francisco, http://www.trisf.com


photo credit: Ann Buscho, Ph.D.

Can a Divorce Team Save You Money?

You made the very serious personal decision to terminate your marriage. This decision necessarily takes you to the procedure known as divorce (AKA Dissoluiton of Marriage in the Court).

You found yourself an attorney who discusses the different processes with you that can be used to divide assets and debts, set a child sharing plan, and set support. You say, “We don’t want to go to court – we just want to settle.”

The Collaborative Family Law model provides the most complete and efficient process to meet your goal. The hallmarks of the Collaborative Law divorce process are an agreement from everyone at the outset to exclude all court proceedings, and engage the services of various professionals, known as “the team” to assist in the resolution of all issues.

Why is a “team” needed? Why do we need a team just to get a divorce? If you don’t have any assets, income or children, then you don’t need a team and you can stop reading. If you do have any of these, I encourage you to continue.

ALL parties in a divorce in California no matter what process is used are mandated by law to exchange Preliminary Declarations of Disclosure. It means each side must provide in writing to the other a disclosure of all assets and debts. There is considerable debate regarding the extent and specificity required, but the goal of the law of disclosure is to adequately inform both sides before decisions are made regarding dividing assets and liabilities.

The main advantage to having one neutral financial person as part of a Collaborative team is that you deal with just one individual working to provide fair and accurate information to both parties in a divorce. Both parties provide financial information to the single financial expert. He or she verifies and organizes it, and reports the information in an understandable form to both parties and their counsel. Everyone is on the same page.

In comparison, in many “litigated” cases, a joint expert is not retained at the outset of a case, and after a great deal of increased animosity, distrust and anxiety, not to mention expense, the parties either reach the point of a joint expert or continue to battle each other with their own expensive experts – two instead of one.

Many times even the most sophisticated party in a divorce may be surprised to learn some information in the exchange. For example, husbands and wives can be wrong about how title is held on a property, whether something is community property or not, or the true value of a given asset. Clear, organized information such as this is essential to the parties in a divorce to reach reasonable and informed solutions.

The independent financial specialist also assists in determining the true income of both parties and the relative expenses for separate households going forward. Compensation packages for W-2 earners as well as the self employed have become increasingly complex with the proliferation of compensation such as Restricted Stock/Units, Performance Restricted Stock, Stock Options, claw back provisions, insider trading rules, irregular bonus payouts, profit distributions, 401K and profit sharing plans. Employment benefits can impact both asset division as well as ongoing income available for support. Self employed individuals often have unrealistic opinions of their worth or income.

The parties and their respective counsel need accurate, efficient documents and information in order to adequately educate and advise the parties as to the best solution and informed decisions for their particular case.

Even more important than the financial considerations in a divorce is the attention needed to preserve the best interest of the children. A child specialist can be the most valuable person on the Collaborative team.

First, the children need to be assured early and often that the separation of the parents is not the fault of the child. The child may be in need of therapy that neither parent is able to recognize or facilitate because of his or her own emotional upheaval. The child needs a neutral place to discuss his or her input and even vent, without fear of recrimination from a parent. Children of different ages have different needs and concerns.

All of this can be discussed with the parents and the child specialist in a safe and calm situation in order to reach a suitable, workable family child sharing plan. Every mental health expert agrees that continued animosity and conflict between the parents in divorce renders harm to the children from which they never recover. The Collaborative team, with the help of the child specialist, has the best chance of avoiding this tragedy.

If parents are unable to agree regarding the sharing of the children in a litigated divorce case in court, the family frequently undergoes a costly custody evaluation process and may have their own “expert” to review the work of the expert conducting the evaluation. Once again, you have the potential for three experts instead of one, as well as counselors and therapists, coming in at a much later stage of the proceedings after further polarization of the parties and damage to the children. The structure of the Collaborative team and process can “put everyone in the same room” from the beginning of the process.

Equally important to the team are the coaches for each of the adults. Divorce is one of the most emotional processes a person can go through in a lifetime. Everyone can use assistance from time to time for insight and balance while dealing with the inevitable feelings of loss, uncertainty, fear, anger and overall anxiety. Your attorney is not a psychologist. It is the duty of the attorney to maintain as much objectivity as possible in order to advise the client in the decision making process, and the individual coaches are a tremendous assistance in facilitating the parties to reach resolution.

With a professional Collaborative team in place from the outset of a divorce, you will be provided information, organization, support, advice and assistance for the entire family in the transition process for the best possible solutions. Otherwise, you may end up with a team or two anyway, but in a courtroom instead of a conference.

 

Win Heiskala is a family law attorney in San Diego. She graciously allowed CPM to repint her blog piece, and can be contacted at http://www.blsapc.com/ 

photo credit: Ann Buscho, Ph.D.

Three Ways to Increase the Odds Your Divorce Process Will Feel Successful

Divorce is a painful time no matter whether you are the one to initiate the process or you are the one who is reluctantly dragged through the process.  You and your spouse together have the choice of how to go about ending your marriage and moving into a better space.  The following are three ways to feel you have control of the process and its outcome.

  1. Educate yourselves about your divorce process options.  One way to do that is to attend a Divorce Options Workshop put on monthly by Collaborative Practice groups in counties around the state.  Then decide which option will work best for you and your spouse.
  2. Interview attorneys and other professionals whom you expect to have help you make agreements for the finances and your children's care.  Ask about their commitment to out-of-court processes, such as Collaborative Practice, where the ultimate goal is to reach agreements that you can each honor.  No matter the process you choose, look for professionals who are qualified members of a Collaborative Practice group.  They have most likely committed to practice standards and ongoing training.  These professionals are also the most likely to follow a shared model for Collaborative representation and to have made the effort to become trained as effective Collaborative professionals.  Research has shown that one of the best predictors of a good divorce process and outcome is the selection by divorcing spouses of two attorneys who respect one another and have a good track record of settling cases together and working together effectively to help clients reach creative, respectful solutions.
  3. Do everything in your power to reduce conflict between you and your spouse.  Enlist a neutral financial professional to gather your financial information and supporting documentation, provide the results in understandable formats, educate both of you as needed on the finances, and help you understand the financial and tax consequences of your ideas for settlement.  Enlist divorce coaches to help you create a parenting plan that will carry you through the different stages of your children's development.  Divorce coaches can also help you deal specifically with the emotions connected to the divorce process and provide effective communication tools.  For more help, one or both of you might seek relief from your pain and disappointment from a licensed mental health professional.  If you select the Collaborative Divorce process, tell your friends and family that you know they love you and want the best for you and that you are getting the information and advice you need to sit down and have the difficult conversations with your spouse so that you can to create a good life for yourself.   This will empower you and make you feel successful.
Judith F. Sterling is a CPA, Certified Divorce Financial Analyst, and Collaborative Financial Specialist practicing in Sonoma and Marin Counties.  

photo credit: Ann Buscho, Ph.D.


What is all this about Community and Separate Property?

One of the tasks that must be solved by couples going through a divorce is how to divide their assets and debts. A marriage is viewed as a partnership where whatever either spouse earns or creates during the marriage belongs to both. Income, including bonuses, stock, and retirement contributions, and assets, real property, savings and investments, as well as financial obligations, that are acquired during the marriage as a result of either spouse’s labor, skill and efforts, ie employment or self-employment, are called community property, equally owned by both spouses. Assets or debts owned prior to marriage, or received during marriage as gifts or from an inheritance, are called separate property. If assets were purchased during marriage using community and separate funds, there would be a community and separate component interest in the asset. How title, if any, is held could affect the percentage. Should a spouse work during marriage to increase the value of separate property, a portion of the increased value might be viewed to be community property to compensate the marital partnership for that spouse’s time. After separation, income becomes separate property but is available for child and spousal support payments.

For couples who choose to use a litigation process to divide their assets and debts, their community property will be divided equally and separate property will be fully retained be the owning spouse. A court does not have the ability to take into consideration the interests and needs of the family or their specific financial circumstances which might warrant a different division. The advantages of using a consensual dispute resolution process, such as Collaborative Practice, is that a divorcing couple is not bound by this narrow formula. Instead, spouses work together to consider multiple possibilities for the division of their community and separate assets and debts. With the assistance of a neutral financial professional, the various options are tested for viability and determined if realistic. They then have the opportunity to select a settlement package that provides benefits for each spouse and their children. The goal would be to achieve a mutually acceptable durable solution.

Susan Stephens Coats is a collaborative family law attorney in Marin and San Francisco

photo credit: Ann Buscho, Ph.D.

How Can I Control the Costs of My Divorce?

Once the difficult decision has been made to get divorced, the next biggest concern is usually how much it will cost.  As you may already be reeling from the emotional costs of the loss of your marriage, the added stress and anxiety associated with the potential or real loss of financial stability may be close behind. Here are a few considerations to keep in mind as you navigate your divorce that directly impact the cost of your divorce.

  1. Mitigate Conflict. This is the first and most important way to keep your divorce costs down. While there has most likely been conflict in your marriage leading you to divorce, do your best to manage your emotions outside of the negotiation. A Divorce Coach can be instrumental in helping you navigate the emotional minefield of divorce and guide you to a safer space from which you can make better decisions for yourself. There is a direct correlation between agreement and divorce costs.
  2. Consider Alternative Dispute Resolution Models such as Mediation or Collaborative Divorce. Litigation, being the highest conflict process, is typically also the most expensive.
  3. Don’t be afraid to use Specialists. Their fees are generally lower than attorney fees, and each professional can do what he or she does best. Remember your Attorney specializes in the law. CDFA’s specialize in financial matters, and a Divorce Coach can help you communicate effectively in your negotiation, while managing your emotions.  Child Specialists can help you and your spouse get on the same page to make decisions involving the children. 
  4. Try to keep an open mind. Remember that your idea of “Fair” may not be the same as your spouse. If you are anchored to a particular outcome, it may take longer to come to a resolution, therefore more expensive. Time is Money.
  5. Understand your attorney’s billable hour and use their time wisely. A few phone calls can add up quickly. Email as much as possible to communicate with your attorney. This allows them to answer your questions when they are not distracted by other issues, minimizing their down time and your bill.
  6. Financial preparation is critical. A Certified Divorce Financial Analyst can help you gather and organize your assets and debts as well as your income and expenses. Accurate information expedites the process reducing costs. Again, in the Litigation model, formal discovery such as subpoenas and depositions are often the most lengthy and costly parts of a divorce.
  7. Remember the law of diminishing returns. Sometimes it just isn’t worth spending thousands of dollars in fees fighting over something small. Make sure the Benefit is worth the Cost.
  8. Finally, Mind your credit. Retail therapy is common after divorce. Don’t do it. If you have to, you should avoid putting charges on credit and make sure you pay all of your bills on time. You will need a good credit score to start fresh after the divorce.

Susannah Malek is a Certified Divorce Financial Analyst (CDFA) in San Rafael. 

photo credit: Ann Buscho, Ph.D.

Nesting: What is it? Is it right for us?

Perhaps you have heard of parents “Nesting” (sometimes called “Birds-nesting”) while separated or divorcing.  Nesting refers to a transitional arrangement where parents continue to share the family home and take turns being “on duty” with their children.  The children stay in the home full time, which gives them more time to adapt to the other changes in the family.  The parents may live in separate areas within the home or, more commonly, in another location when they are “off-duty.”  Some parents share the off-site residence, while others find separate living quarters, or stay with friends or family.  The goal is usually to provide a stable home for the children while the marital status is in flux.  These parents work out agreements about communication, schedules and finances.  Sharing the nest is usually temporary, until further along in the divorce process when decisions about the home and the timeshare schedule are made.  Parents may nest for months or even several years.  Some parents agree to nest until a milestone is reached, such as the children’s graduation from high school. 

Nesting works well for parents who are able to communicate respectfully with each other, and who can respectfully manage leaving the family home in reasonable condition when turning over the duties to the other parent.  Studies show that children suffer when their parents are in conflict.  Nesting can be a good choice for parents who have minimal conflict.  These parents are willing to put their children’s welfare ahead of their own.  It can be hard to move in and out of the family home, and these parents experience first-hand what their children may experience when they live under two roofs. 

Advantages:  Nesting provides some stability for the children while they adjust to their parents’ separation and divorce.  Their routines may not change much.   The children have quality time with each parent.  Some nesting parents call themselves “apartners” as they live apart while they partner as parents.  Nesting gives you both time to sort out the other divorce-related issues before making big decisions and changes about housing.  If nesting is during a trial separation, and the parents are both actively working on the marriage, some parents may be able to reconcile. 

Disadvantages:  Most adults find it disruptive to move in and out of the family home, and the alternate location may be less than ideal.  It may be costly to support the family home as well as two other living quarters.  Nesting is not advisable in high conflict relationships, or where there are coercive control issues.  An explicit agreement regarding schedules with the children, finances, and communication is essential.  Nesting becomes problematic when either parent develops a new serious, long term relationship.  Nesting is not advisable unless both parents trust each other.

Steps to Successful Nesting

  1. Decide whether both parents will remain in the area or city.  Nesting works when both parents are available for their “on duty” parenting time.
  2. Think through the value of nesting for the children and ask yourself if you can set aside your own comfort and prioritize the comfort of your children.  Nesting works best when both parents remain actively involved with their children.
  3. Consider your finances and whether you can afford to support alternate living locations.  Increasing financial stress is not helpful to you or the children.  You may need to reduce your standard of living if you are paying rent or mortgages in two or three locations.
  4. Decide whether you and your spouse can share the “off-site” location, or whether you will each need your own space. 
  5. Work together with the other parent to create a consistent and stable home for the children.  Find ways to communicate in a respectful manner about matters relating to the children, the home, and the finances.  Use communication tools, such as an online family calendar, to make the transitions easier.  Communicate regularly about how the children are doing.
  6. Act rationally, not emotionally.
  7. Develop a timeshare schedule so that each family member always knows which parent is “on duty.”  Make sure the schedule will work for you, and if it doesn’t work well, review and revise it.  Most nesting parents transition in and out of the house once or twice a week, but you and your partner parent need to create a realistic and workable schedule.
  8. Make sure your children understand what you are doing.  You may explain that this doesn’t necessarily mean you will reconcile with their other parent.  Let them know that the nesting may be temporary, and that you will let them know as decisions are made regarding future living arrangements.
  9. Develop a written agreement about communication, house rules, household responsibilities, who pays the bills, and how holidays and birthdays will be handled.  Consider setting up a joint “family” bank account to support the home and the children.  You may choose to consult with a financial specialist who will help you set up a realistic budget.
  10. Get help from a family therapist if necessary.  The family therapist can help you create a parenting plan that works for your family’s unique needs.
  11. See a financial professional to help you with budgeting for nesting if you want assurance it will work financially for your family.

--Ann Buscho, Ph.D. is a Collaborative Divorce Coach and psychologist in Marin County.  http://www.collaborativepracticemarin.org/members/Buscho

photo credit: Ann Buscho, Ph.D.

I Don't Know How Much We Spend per Month!

When one is first contemplating leaving a marriage or when one is first told their marriage is ending, panic can set in.  Oh my gosh, will I be able to stay in my home?  Where will I go?  What kind of place can I afford?  Will I have to get a roommate?  All of these thoughts can come flooding through our consciousness.

Don't panic.  It really does not matter if you are the one who has handled the finances or the one who knows very little to nothing about your family's finances.  Begin to gather invoices to help you understand how much you spend on a monthly basis.  You will want to locate the invoices for expenses such as utilities, cell phone, mortgage or rent (which may be in a different home), groceries, gasoline, parking, day care, dues, clothes, pets, prescriptions, health insurance, credit card bills, auto and student loans, haircuts, and any other kind of expense that you pay each month.  This would include contributions to a retirement account.  You may not have all the invoices or receipts.  In that case begin to keep track of all the expenses you incur on a daily basis for a couple of months to see what you are spending and in what category.

Then think about other bills that come in once, twice, or maybe three times per year such as property taxes, property insurance, umbrella insurance, auto insurance, vet bills, auto repairs, house maintenance, and tuition.  Figure out what an average monthly amount would be and add this to your known monthly amounts for regular monthly bills.  This should give you a reasonable idea of your total average monthly expenses before income taxes are considered.  This exercise is very grounding.

Income taxes are likely be different in the year you are divorced.  If you have questions about what taxes may be or if you want further guidance in this process, seek the advice of a divorce financial professional.

This exercise of gaining a complete understanding of your family's spending patterns will help you feel in control of your life and help you be confident about your decisions when it is time to make financial agreements with your spouse. 

Judith F. Sterling is a CPA, Certified Divorce Financial Analyst, and Collaborative Financial Specialist practicing in Sonoma and Marin Counties.  

photo credit: Ann Buscho, Ph.D.

The Law--Is it the Elephant in the Room?

One of the first things people want to know when they are seriously thinking about a divorce is – what does the law say?  I often hear “I want to be fair, but I don’t know what fair is.”  People tend to think the law will determine what is fair.  However, when they hear what the law says, it often seems unfair to at least one if not both of them.   Even when people want to follow the law, it is not always clear. 

In a litigated divorce, when the law is “gray” rather than “black and white,” arguing about how it should be applied or interpreted can drive up costs.  In addition, many other variables come in to play, such as – who is the judge, who are the respective attorneys, what is the amount of money available to spend on arguing, etc.  Furthermore, issues and circumstances that are really important to people are often deemed irrelevant under the law, so they never get discussed nor argued.

 In client-centered processes, like Collaborative divorce or mediation, the law only has as much power as the people choose to give it.  Clients get to decide what role the law will play in their divorce.  They are free to use it for some purposes and to ignore it for others.  Whenever the law is introduced, however, it can feel very powerful and can easily take over. The law can be like an elephant in the room - taking up all the space and sucking up all the air.  So, in Collaborative divorce, we take care to work with the clients about when and how the law will be introduced in the process.  Clients may find the law useful to understand the reasoning underlying the law, the standards of society expressed in the law, and to compare their potential agreements against what they could expect in the legal marketplace.  Knowing all this often helps the clients to make their own customized agreements.  

What else, apart from the law, can people look to for help in making decisions in their divorce?  They may want to consider:  1) agreements they may have made with each other during their marriage, either verbally or in writing, that they want to honor,  2) their individual needs and interests that are important to them, 3)  the needs and interests of other people, such as their children, other family members, friends and colleagues, 4) basic financial realities: what the law provides may not fit their situation, 5)  something that happened in their relationship they may want to honor or account for, and 6) any other factor that is important to one or the other.  Thus, the law is only one of seven reference points for making decisions in a Collaborative divorce. 

The goal for most clients in a Collaborative divorce is to reach a mutually acceptable durable resolution.  An agreement is not durable, or lasting, if a person realizes some years later that they never would have made such an agreement if they had known then what the law provided.  So, Collaborative attorneys want to educate the clients about the law at some point in the process, but will take guidance from the clients as to how and when to introduce it.  Instead of the law being “elephant-size,” we want to “people-size” it.  Then, clients can customize their decisions to fit their particular situation, needs, and interests. 

Nancy J. Foster, J.D. is a mediator, Collaborative divorce attorney, trainer and Executive Director of the Northern California Mediation Center in San Rafael, CA. See more at www.ncmc-mediate.org.

photo credit: Ann Buscho, Ph.D.

Keeping Kids Out of the Conflict During Divorce

Everyone knows that kids should be protected from their parents’ conflicts.  It’s tough to do this when emotions run high, and you are hurting and angry.  When you are in so much pain, you may turn to your children for comfort or support, or you may want to tell them the “truth” about the other parent.  So why is this such a bad idea? 

Kids who are caught in the middle of their parents’ conflict and divorce have worse outcomes than those whose parents prioritize a “child-centered divorce.”  A search on Google brings up many references to the term, a “child-centered divorce.”  There are helpful websites and blogs that advocate for a peaceful (out of court) resolution of the divorce, and a parenting plan that prioritizes the needs of the children.

This means that kids whose parents stay angry and hostile have more emotional and behavior problems that last into adulthood.  The good news is that kids whose parents are able to move beyond the conflict have a good chance at success in life, in school, their relationships, future positive mental health.  

Many parents going through divorce have told me that their children are “fine”; that they are “resilient,” but my experience as a child therapist has taught me something different.  In the privacy of the therapy office, children talk about their parents’ arguments, their worries about money, the accusations of betrayal or their fears about the future.  Because kids worry about their parents, they often cope by trying to look better than they really feel.  Inside they may be deeply pained but unable to talk to their parents when they see how much their parents are suffering.  They intuitively sense that their parents have enough to worry about, or that their parents need to see the children as fine.

So why keep your kids out of the middle?  For their own mental health, they need to love both of you, and if they feel caught in the middle, they may feel they have to choose between you.  This is damaging to children.  Your children know that they have a part of each of you in them, and if they turn against a parent, it is as if they are turning against a part of themselves. 

What happens when kids are caught in the middle?  They feel like they are caught in a terrible tug-of-war.  They may feel they need to determine who is at fault, or what is “fair.”  They may feel burdened by their parents’ emotions and not able to express their own.  They may begin to regress, shut down, or act out.  Teens and young adult children of divorcing parents may try to get involved in the divorce process itself, in unhealthy ways, by trying to mediate, or judge, or advocate for particular outcomes.  And this distracts them from focusing on their own lives in healthy ways. 

Here are some ways to protect your kids:

  1. Don’t speak badly of the other parent.  Don’t blame them, criticize or complain about them.  If you’re a kid, this hurts!  Seek out your friends or a therapist if you need to vent or complain.
  2. Don’t ask your kids to take sides.  Ask yourself if you are doing so, even in subtle ways, and remind yourself that it is healthier for your kids to love both parents.
  3. Don’t send messages or paperwork with the kids when they go to their other parent.  Keep the divorce business well away from them.
  4. Don’t talk about the divorce business, about the meetings, the financial settlement details or division of property.  Legal talk is painful for kids to hear and distracts them from being able to focus on their job—to be kids. 
  5. Don’t have difficult conversations with your spouse when the kids are being transferred from one of you to the other parent. Keep these out of earshot and private.  You would be surprised about how much your kids actually already hear and know.
  6. Don’t ask your kids to keep secrets from their other parent. 
  7. Don’t use your kids as your confidantes.  You need adults to turn to for support.  Connect with friends, family, a divorce support group or a therapist.
  8. Don’t ask your kids about your spouse’s personal life, like if s/he is dating.
  9. Don’t restrict your kids’ time with their other parent because you are mad at your spouse. 

Here some things you can do to help your kids stay out of the middle of the conflict:

  1. Minimize the disruptions to the kids’ routines as much as possible.
  2. Make sure both parents stay involved with your kids.  Make sure they have frequent and ongoing contact with both of you.
  3. Provide frequent reassurance.  The divorce isn’t their fault—they didn’t cause it, and they can’t change it.
  4. Focus on their growth and healthy change as they adapt and adjust to the new family structure.  It can help some kids to say “We are still one family, under two roofs.”
  5. Model respect for their other parent. 
  6. Let the children continue to be kids.  Maintain their play dates and other activities as much as possible.
  7. Imagine the story you want your children to tell about their parents’ divorce, and know that every day you are helping them to construct that story.
  8. Create a parenting plan that minimizes the potential for conflict.  By creating and committing to a set of default decisions, together with your spouse, the potential conflict will be minimized.
  9. Seek professional help if necessary, with or without your ex.

Remember that the divorce is a problem to be solved by you and your spouse, the adults, and your kids will benefit from knowing that their parents will continue to parent them together, even if they are living under two roofs.  Take the time to work with a professional, if necessary, to resolve your grievances with your spouse so that your children don’t carry the burden of bitterness and grief into their future.  Thousands of kids go through divorce with their families, but you can help them to overcome the challenges, become more stress-resistant, resilient, and flexible, by keeping them out of the middle of the divorce.  One to two years after a “child-centered” divorce, most kids are on track and healthy.

--Ann Buscho, Ph.D. is a Collaborative Divorce Coach and psychologist in Marin County.

photo credit: Ann Buscho, Ph.D.

What Happens to Social Security Benefits When You Divorce?

Questions abound about Social Security benefits when there is a divorce.  Social Security benefits are Federal benefits and are not subject to division in state courts.  That being said, under current Federal law unmarried lower earning spouses who had been married for 10 or more years before divorcing and are at least 62 years of age are entitled to ½ of the higher earning spouse's benefits under what is known as a derivative benefit or 100% of their own benefits - whichever is higher even if the higher earning spouse has remarried.  In order to receive the full ½ derivative benefit, the lower earning spouse must be at his or her full retirement age and the higher earning spouse must be of minimum retirement age or age 62.  If the higher earning spouse begins collecting Social Security benefits before full retirement age, the amount of the lower earning spouse's derivative benefit will be reduced by a percentage based on the number of months before the higher earning spouse reaches full retirement age.  In addition, lower earning spouses must be eligible to receive their own benefits, meaning they had worked a minimum of 40 credits.  One earns a maximum of four credits per year.  In 2013, one could earn one credit for every quarter one earned at least $1,160.

These derivative benefits for lower earning spouses have no affect on the benefits of higher earning spouses, their current spouses, or other family members.

If you are the lower earning spouse and are curious about whether your ex-spouse's benefits are more than 50% higher than your benefits, contact the Social Security Administration who will provide you with the benefit amounts to which you may be entitled after first verifying your relationship to your ex-spouse.  Privacy laws prohibit the Social Security Administration from providing the ex-spouse's actual Social Security Statement.

Should the higher earning spouse pass before the lower earning spouse and be fully insured (meaning having 40 credits), the lower earning spouse may be eligible to receive 100% of the higher earning spouse's benefits.  These benefits are called survivor benefits.  The survivor spouse must be at least age 60 or at least age 50, if disabled.  The survivor spouse must have been married to the ex-spouse for at least 10 years and be unmarried unless married after age 60 or after age 50 and at the time of remarriage were entitled to Social Security disability benefits. 

If at the time of divorce one legally changes his or her name, it will be important to notify the Social Security Administration.  For most people this would mean obtaining a certified copy of the divorce decree showing request for name change from the county Superior Court; providing either an original US issued driver's license, state ID card, or US passport; completing an application for a Social Security card; and delivering all items to the local Social Security office or Social Security Card Center.  The Social Security Administration notes that if mailing, original documents and certified copies will be returned with receipt.

For more information on Social Security benefits visit http://www.ssa.gov.  Or contact the Social Security Administration directly for answers to your specific situation.

Judith F. Sterling is a CPA, Certified Divorce Financial Analyst, and Collaborative Financial Specialist practicing in Sonoma and Marin Counties.  

photo credit: Ann Buscho, Ph.D.


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About Collaborative Practice Marin

CPM is a community of legal, mental health and financial professionals working together to create client-centered processes for resolving conflict.  We are located in Marin County, California. 

Why Collaborative Divorce?

“Divorce is never easy but the collaborative process made mine bearable.  I had more control and therefore less stress and anxiety because I had an active role.”

~JF

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