Making Medical Decisions About Your Child with Your Ex-Spouse

In Kansas, most parents are awarded joint custody.  In joint custody situations, medical decisions must be made jointly between Mom and Dad, absent an emergency.  Emergency is not defined by most agreements, however, Merriam-Websters Dictionary defines it as: the state that calls for immediate action.  The situation regarding medical decisions can become very tricky when parents don’t agree or refuse to communicate regarding medical decisions.

Think about this Wisconsin case:

A Wisconsin couple failed to seek medical attention for their 11-year-old daughter, who died from untreated diabetes.  They were convicted of second-degree reckless homicide and recently sentenced to 30 days in jail each year for the next 6 years, as well as 10 years’ probation.  The parents failed to seek treatment for their daughter and instead prayed for their daughter’s health, even when their daughter stopped being able to walk or talk.

As you know, diabetes generally is not a medical emergency.  However, when left untreated, it becomes an emergency. In the Wisconsin case, the parties were in agreement to not treat the child.  However, in the case of divorced parents, I would assume that both parties would not agree to not medically treat the child.  How do you deal with this??  Unfortunately, there is no easy formula and thankfully both parents are usually on the same page when it comes to the well-being of their child.  However, with some illnesses there are lots of different treatments such as diabetes, mental health, physical disabilities, learning disabilities, etc.   Therefore, if you have joint custody, regardless who is the residential parent, no one has superior rights regarding the choice of treatment.  If you and your spouse differ on how to treat an illness, and you believe your way is the best way, unless it is an emergency, you cannot make a unilateral decision.   I would suggest to contact an attorney immediately if you and your spouse are unable to agree on a resolution when faced with treatment options.

Social Networking Sites and Your Divorce

In June, I posted an article regarding Facebook and your divorce, however, the article focused mainly on the law.  I came across a recent article that was focused on how to deal with your spouse through the social media.  Usually, one spouse is more outgoing than the other, and the more outgoing your are the more likely you are to post your feelings about everything on your profile page.  While this may be therapeutic to some, to others it is embarrassing, devastating and can lead to outrage.  Let’s just say it is generally not good to air your divorce laundry on these sites.

Here is a excerpt from the article posted on Salon.com:

The Facebook divorce

Couples are broadcasting their breakups online while friends — and lawyers! — watch in amazement and horror
By Amanda Fortini

“We are getting a divorce. It has been in the works for a while now,” Lauren, a 36-year-old mother of two who resides in a small town outside of Austin, wrote on her Facebook page at the beginning of July, about her husband of 13 years. (Lauren is not her real name.) She was commenting on a response — a single, stunned “Huh?” — to the change in her relationship status. “Lauren went from being ‘married’ to being ‘single,’” read the dry, cold, unsympathetic recitation of fact. The infamous little broken-heart icon, the fixture you hope that, like some medical alert bracelet, you will never have to wear, fluttered up to hang alongside it. This is how life’s big moments unfold on Facebook: Epic emotions are reduced to emoticons.

During the month that followed, as the marriage continued to unravel and her grief intensified, Lauren began chronicling her divorce via status updates. “Lauren would cry, but then he wins,” she wrote. “There isn’t enough Kleenex in the world.” “My house is a mess. My life is a mess.” “Lauren is facing the aftermath.” Her very private ex-husband-to-be soon grew enraged. “I would write that I was upset or what have you, and he would assume that every negative thing I wrote was about him,” Lauren told me. “I didn’t feel like I was overstepping any boundaries, but he did.” When she began to write about her new relationship, her husband finally lost it. “I wrote that I was ‘Going to pizza night and beyond,’” Lauren said, “and he was offended by it. I thought it was vague enough.” Lauren’s husband then warned her that he planned to “un-friend” her. “So,” she said, “I did it first.” Call it “War of the Roses” on Facebook.


Your upside down real estate and Kansas Divorce

I have discussed what to do with your house on several posts, however, I realize  I haven’t really touched on what you should do with your house in your divorce if your house is upside-down (you own more on your house than its worth).  While there is no great solution to this issue, you should certainly weigh your options very carefully if you are faced with this scenario.

1. Continue to live together until one of you can refinance or the home sells.

2. One person continues to live in the home but both parties split the bills.  This situation would only work if you or your spouse has a friend or family member willing to let him/her rent for free.

3.  Negotiate a short sale. A short sale is when you get the permission of your mortgage lender to sell the house for less than what you owe on the mortgage and hopefully, you negotiate that you won’t have to make up the difference.  Most lenders will not extend the option for a short sale unless if you’re behind on your mortgage payments by several months.

4. Walk away from the home.  Let it go into foreclosure.  While this is generally not recommended, I would prefer to see clients cut their losses before sinking every penny (including cashing out retirement assets) to pay for a losing asset.

5. Negotiate a loan modification.  This may be a good option if you and your spouse do not want to enter foreclosure, however, you cannot afford the payments.  If you can renegotiate your mortgage terms, you may be able to sell the home to break even, rent the home, or one party may be able to live in the home.

What you need to remember is that with all of the above options, if both parties are on the loan, then BOTH parties still remain liable until you sell the home or refinance yourself. It is important to make these decisions jointly with your spouse as you still remain legally tied to this home, regardless if your marriage has been dissolved.

Women Required to Pay Maintenance to their Ex-Spouse

It is definitely a sign of the times, and while some see this new(er) trend as a positive sign of equality among men and women, most women are angry over the idea of paying maintenance to their ex-spouse.  Now, as more women become primary breadwinners, women are complaining about the unfairness of paying maintenance to their ex-spouse.   According to a U.S. Census Bureau data, the number of American men receiving maintenance has climbed, from 7,000 in 1998 to 13,000 last year.

Let’s review the purpose of maintenance:  to rectify an economic imbalance in earning power and standard of living in light of the particular facts of each case, with the primary factors to be considered being the needs of one spouse and the other spouse’s ability to pay.  There are many factors, which I have discussed in prior posts, but really, in light of the economic recession, a main factor is the other spouse’s ability to pay.

The “stigma” with men asking for an order of maintenance has decreased, as more men have become primary caretakers of the home and children while the wife earned the income to support the family.  Another factor that has led to the increase of men receiving maintenance is due to the recession affecting predominately male industries such as construction and finance.    There are some women who believe that they should not have to pay maintenance unless there are kids involved.  Whatever the situation among the parties, it is very clear that it will be several more years before this new trend of “man-imony” will be commonly accepted.

Effect of Divorce on Your Tax Liability

This post will make more sense if I give you a scenario as to how this situation may arise:

Husband and Wife are married, and file joint taxes during their marriage.  Husband and Wife divorce.  At the time of the divorce, Husband had a tax liability owed of $1,000.00.  During the divorce negotiations, Husband agrees to be responsible for the tax liability.   Years later, (Ex)Husband dies and never paid the tax liability.   Wife has remarried, and files taxes jointly with her new husband.  20+ years after their divorce, the IRS takes Wife and new Husband’s tax return to cover the tax liability of her ex-husband who is now deceased.

WHAT???

In the past, some states only had the ability to track the first person listed on the tax return.  Generally, the Husband, the higher income earner (again, generally), the Husband, was listed first on the return, and the Wife second.  The state had no way to come after the Wife, until their system was updated.  Once they had a way to track the second person listed on the return, the state came after the Wife since the Husband was now dead.   Your joint tax liability doesn’t necessarily go away if one party dies.  Even though the Husband agreed to be responsible for the debt in the divorce negotiations, Wife was still liable for this joint debt in the eyes of the IRS.

What can you do about this??

First, you need to make sure your divorce decree or settlement agreement addresses future or current tax liability.   There should be some language such as this in your agreement:

Each of the parties agree that they shall give the other party notice of any tax investigation, audit, or assessments for taxable years during the marriage and before and the failure to give notice shall require indemnification from that person for all costs and expenses including the attorneys fees for the resisting of the imposition of the tax and collection of reimbursement or failure to give such notice. In the event of an assessment of any taxes, penalties or interest arising out of taxable years during the marriage and before, each party shall be solely responsible for any and all liability as a result of their respective incomes in such year.

Second, if the IRS were to come after you for your ex-spouse’s liability, you can appeal the decision based upon the language in your divorce decree or separation agreement.  While most would prefer a more clear cut solution, there is no perfect solution for pre-divorce liabilities.

Discussing your Kansas Divorce with your College Age Children

Many people wait until their children have left home to file for divorce, thinking the divorce will be easier on their children once they are grown.  Waiting until you have an empty-nest is not always easier on the children. In fact, according to the author of He’s History; You’re Not: Surviving Divorce After Forty , a divorce on a college-age child can be devastating.   According to Erica Manfred, college students have a name for it: “the freshman call.”

Ms. Manfred gives parents the following tips when discussing your divorce with your college aged children:

How Not to Announce Your Divorce

On the Phone or by Email:

“The worst thing is when the entire divorce plays out over the phone and e-mail,” says Brooke Lea Foster, who went through her parents’ divorce over the phone when she was a college freshman. “You get snippets and constantly feel like you should be there. You feel guilty, embarrassed. You’re just getting to know people at college and are too embarrassed to be crying about Mom and Dad when you’re being an adult for the first time. When you leave home you rely on home to ground you; when home has an earthquake rumbling under it, you’re thrown for a loop.”

At Christmas Dinner:

Your children will feel blindsided if they come home for the holidays only to find out their parents are getting divorced. Tell them when they have some time to absorb the news, such as mid-semester or the end of their freshman year.

Without Telling Your Spouse First:

Adult children bitterly resent it when they feel that the news has been communicated in a sneaky, indirect, dishonest, humiliating, or unnecessarily brutal way. They especially resent it when they are left to break the news to the other parent. Actually, the best way to tell adult children about your divorce is the same way the experts recommend telling small children. If at all possible, you and your husband should sit down with them together when they have some time to digest the news. If your children are in college, wait until they’re home for a long break.

By Telling A Lie:

If you were the one who had an affair, own up to it. Don’t try to lie to your kids, because someone will tell them and they’ll be furious at you for it. If their father had the affair, don’t cover up for him, either. They are grown-ups and can deal with it. If they ask about something, be straight with them–without trashing your ex in the process.

Advantages to Not Settling Your Kansas Divorce

My last post focused on settling your divorce through a settlement agreement, however, I recognize there are times when settling is not advantageous or sometimes, possible.  While I still believe the best way to amicably end your divorce is through settlement, having a divorce trial may be necessary under the following circumstances:

  1. You are unable to communicate effectively and reach any agreements with your spouse, and most discussions end up in arguments.
  2. You believe the law is clearly on your side in your case (for example: your spouse is wanting to divide the assets 70/30, however, you propose 50/50)
  3. You believe your and your spouse could potentially have a better friendship in the future if the ruling is made by a Judge.
  4. The Judge may award you more than if you had accepted your husband’s offer

Advantages to Resolving Your Kansas Divorce Through Settlement

Most divorces, especially those in Johnson County, are settled through means other than a trial in front of a Judge.  I believe this is the best solution for all parties involved.  It is a more cost effective way to resolve the issues and hopefully a more peaceful and amicable solution.  It is often hard for clients to believe that I can help them achieve a  more satisfying result than a Judge will, however, a majority of clients are often disappointed with the final divisions made by the Judge, and often deem it to not be “fair”.

Here are some things to thing about when engaging in settlement conferences with your soon to be ex-spouse, and why you may want to work very hard to resolve your issues instead of proceeding to trial:

  1. Trials are extremely expensive.  The costs for legal fees, witnesses, depositions and exhibits can be daunting.
  2. When a judge makes the decision, you (and your spouse) lose all control over the final decision.
  3. Taking a case to trial takes a lot of time, therefore the divorce may take over one year to complete.
  4. Dates for trials can be scheduled in non-sequential days, adding to stress, loss of money, and inconvenience.
  5. Your fate (and your families) is left in the hands of a stranger or many strangers.
  6. You may not like the judge assigned to your case.  You may feel he/she has biases and prejudices against you.  It is very difficult to get a new judge assigned to your case.
  7. A civil courtrooms is generally a public forum.  Anyone can come and watch your divorce trial.  All confidentiality is lost, unless all parties agree to a closed courtroom.
  8. Since the divorce process is dragged out, a deeper strain on the relationship between your ex-spouse may make it harder to successfully co-parent, and may eventually be more difficult on the children.
  9. You have to participate in the trial.  You will be on the witness stand for direct examination by your attorney and cross examination from your spouse’s attorney.  Testifying can be brutal, grueling, intrusive, and stressful.
  10. There is absolutely no guarantee you (or your spouse) will have a outcome you are happy with.

When there’s a chance of resolving the divorce without going to trial, you should attempt to settle. You will not only save money and time, the emotional healing from the trauma will begin much sooner.

Dealing with Depression and your Kansas Divorce

I have mentioned this in previous articles, however, I find it important enough to mention it again.  Divorce can be and often times is more traumatic on a person that death.  Due to this, it is very common for clients to feel depressed during this tumultuous time in their life.  Often, clients are feeling and thinking things they have never experienced in their life, and they do not realize their symptoms are commonly associated with depression.

It is important to recognize the signs and symptoms of depression and seek the help of a mental health professional, not your attorney.   Below are the symptoms of a depression taken from the National Institute of Mental Health website.   If you or your children experience five or more of the following symptoms for at least 2 consecutive weeks nearly every day and they are causing significant distress and impairment in functioning consider contacting a professional:

  1. Persistent sad, anxious or “empty” feelings
  2. Feelings of hopelessness and/or pessimism
  3. Feelings of guilt, worthlessness and/or helplessness
  4. Irritability, restlessness
  5. Loss of interest in activities or hobbies once pleasurable, including sex
  6. Fatigue and decreased energy
  7. Difficulty concentrating, remembering details and making decisions
  8. Insomnia, early–morning wakefulness, or excessive sleeping
  9. Overeating, or appetite loss
  10. Thoughts of suicide, suicide attempts
  11. Persistent aches or pains, headaches, cramps or digestive problems
  12. Suicide attempt

To learn more about depression and its treatment visit the National Institute of Mental Health website.

Keeping Your Job Through Your Kansas Divorce

Divorce is not only an emotionally and personally devastating event, it can be extremely detrimental to your work performance.  It is imperative for you to keep your job during this time as divorce is also a financially difficult period.  I recently came across an article discussing several tips on how to keep the impact of your divorce on your job as minimal as possible.

How to keep focus at work while getting a divorce

divorce360.com

Personal problems such as divorce or a troubled marriage often become so overwhelming that they threaten to sabotage all aspects of one’s life, including career. During this challenging time, it becomes especially important to exercise as much “damage control” as possible. In order to maintain your professional life despite your personal problems, you’ll need to prioritize at work in ways you might not have done in the past. Here’s help from some divorce experts who offered career tips:

1. Keep your divorce private: Tina B. Tessina, Ph.D., who also goes by the name Dr. Romance, is a licensed psychotherapist and author of Money, Sex and Kids: Stop Fighting about the Three Things That Can Ruin Your Marriage. Tessina suggests avoiding telling anyone at work about the divorce unless they need to know for business reasons. (If you have to take time off for court, your boss will need to know why.) “Keep your personal life to yourself. That will make it much easier to leave your divorce stress out of the office.”

2. Talk about your problems with someone outside of work: Tessina suggests finding someone outside of work that you can talk to about your marital problems. “It’s too expensive to talk to your attorney and you need somewhere to blow off the steam,” she said. She thinks it’s a good idea to ask a good friend or a family member for support. If no one is available, go for counseling. “As a counselor, I have lawyers who refer divorcing clients to me. I can help them calm down, stop them from acting out (which has severe repercussions in divorce) and help them decide how to talk to the mediator, the judge, their family members and in-laws and their children about the situation,” she said.

3. Keep work at work and home at home: Compartmentalize, Tessina said. “When you get in your car at home, shut the car door on the divorce — give yourself that drive time to escape the divorce problems. When you get out of your car at work, firmly shut the car door on any personal thoughts and get into work mode. When you leave work, shut the work door on work problems and don’t take them home. If you compartmentalize like this, you’ll get some relief and your problems won’t overlap each other.”

4. Try to schedule your court dates convenient to your work schedule: “You don’t want to miss any more work than you have to. The good news is you may not have to,” said Nancy J. Dreeben, matrimonial and family attorney. “Judges recognize that people need to work. In fact, money is generally the main issue in a divorce. If there is a legitimate reason to put the case on the 3 p.m. calendar as opposed to the 9:30 a.m. calendar, a judge is likely to do so.”

5. Try to schedule other appointments convenient to your work schedule: “If child custody is disputed, it is not uncommon for a litigant to have to meet with the child’s attorney and/or court-appointed expert. Again, it never hurts to ask for appointments convenient to your work schedule,” Dreeben said.

6. Give your employer adequate notice when you do have to miss work: Dreeben said most court dates are arranged at least one month in advance. “Provide your employer with your court date and time as soon as possible and offer to make up your time before the court date. . . . You need the money and your employer needs you,” she said.

7. Work diligently to settle your case: “There is nothing worse than having your fate, the fate of your spouse and the fate of your children in the hands of a judge when you are close to resolving the case amongst yourselves,” Dreeben said. “Taking time off for a trial will be financially devastating for you and your employer. If you must try your case, then try to schedule it during your vacation time.”

8. Don’t communicate with your attorney during work, except in the event of an emergency: “When you speak with your attorney you should be in a private place and be able to concentrate. Attorneys charge by the minute. When they tell you something, you need to comprehend it the first time so you don’t have to pay twice to hear the same information,” Dreeben noted.

9. Don’t communicate with your soon-to-be former spouse during work, except in the event of an emergency: “Often these conversations are volatile, which may cause you to become emotional and may negatively impact your concentration and work product. . . . Again, the phones at work are for work-related issues,” Dreeben said.

10. Don’t use the copier at work to copy litigation papers: There is a process during litigation known as discovery, when you and your spouse provide financial documentation concerning income, benefits, etc. “Either use your home copier or go to a copy shop. These matters are extremely private and should not be shared, by mistake or otherwise, with colleagues,” Dreeben said.

11. Don’t inadvertently involve your employer in your litigation.

All information provided in litigation must be truthful, Dreeben noted. “If you make $20 an hour and say you make $10 an hour because you think the judge will make your spouse give you more money, you are wrong. Instead what will happen is that your employer will be subpoenaed to testify with regards to your income,” she said.

12. Don’t use your office computer for personal use.

Your hard and soft drives could be sought for discovery purposes . Your employer will not take kindly to having company equipment seized.

13. Don’t ask your employer to reduce your pay during a divorce for any reason.

If you are a valued employee, you will be putting your employer in an impossible predicament, Dreeben noted. “If you are not a valued employee, you may be terminated.”

14. Focus on work and your work priorities, but with a twist: Keep your focus short and intense.

“Unfortunately, divorce and other high stressors have a way of zapping energy and detracting from the job,” said LeslieBeth Wish, a licensed psychologist and social worker. “Since divorce often increases a sense of loss of control and decreases feelings of self-worth, the last thing you want to do is perform poorly at work. So, divide up your tasks into do-able segments.”

15. Consider taking cry breaks.

By lunchtime, consider taking a three-minute cry break, Wish said. “Go into a bathroom stall or go sit in your car and have a little cry. Crying out your hurt rids your body of stress toxins.”

16. Conserve energy.

Turn down unnecessary assignments so you focus on yourself and your health, Wish said.

17. Make note of abuse.

Do not talk about your divorce at work and schedule personal days to deal with court appearances. The single exception about divorce talk at work, according to Bonnie Russell, a licensed psychotherapist, is when abuse is involved. “In this case, document, document, document and ask all co-workers to alert you should they see his car in the area,” Russell said.