thomas | Triad Divorce Mediation

The Real Reason Divorce is So Difficult

One of my clients once wrote:

“I am going through a divorce. I pride myself on being objective, upbeat and very good at my job. However, since the divorce began, I often feel depressed and sometimes paralyzed. I feel like I am firing on only one cylinder and it is only a matter of time before my employer and my children realize I am not fully functional. Does everyone who is going through a divorce feel this way?”

The short answer: Yes.

Most people believe the most awful psychological experience anyone could have would be one’s own death or the death of a loved one. However, for many who are separating after a long-term relationship, the separation is actually “three” times worse, as follows:

End of a Relationship

First, the end of a long-term relationship is, quite literally, the end of life as my clients know it. It therefore provides the same or a substantially similar psychological experience as that of my clients’ own death, and thereby the ultimate loss.

Happily Ever After

Second, ever since we were small children, we were taught to believe in the romantic notion of “happily ever after” for our domestic relationship. The end of that relationship provides the extraordinarily rude awakening of discovering the “happily ever after” clause is not valid. My clients discover they were tricked and fooled during their entire lives into believing something which turns out to be a giant hoax, a cruel prank. My clients thereby experience the ultimate humiliation.

Trust Your Partner

Third, we were also taught we could trust our domestic partner more than we could trust anyone else in the world. When the relationship ends, my clients usually learn the persons they trusted most have turned against them and are using my clients’ most intimate secrets against them. My clients thereby experience the ultimate betrayal.

Separation Process

Therefore, the separation process often involves the most extreme and awful experiences of loss, humiliation, and betrayal. Unfortunately, this does not include the full inventory of potential damage. For example, the majority of divorces and separations which go to court are ugly. They involve almost unbearable stress, ugly conflict, major losses of time and money, compromised integrity, psychological health and collateral damage to the psychological health of the children. Therefore, the end of a long-term domestic relationship will often be the most awful situation someone will experience.

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Splitting It Down the Middle — Really???

Most all of us are aware that this is a community property state. So what exactly does that mean when it comes time to splitting community assets in a divorce. Let’s look at the global explanation first and then I will attempt to give you my 2 cents or make that 1 cent; if we split it. Community property is a term used to describe property and assets acquired after the marriage. Currently, there are nine community property states. As we know, Texas is one of them.

In addition, Puerto Rico operates under a community property doctrine and Alaska allows couples to choose to designate specific items as community property. So, what does all this mean when you divorce?

Does “community property” mean a 50/50 split?

In general terms, yes. During the property distribution process in a community property state, the court will attempt to divide the property as equally as possible between the two parties. This distribution is usually done using monetary values so that if the divorcing couple came in with $100,000 in assets, each should leave with approximately 50% or $50,000.

Division of Assets

So there you go. Pretty simple, huh? All assets are not created equal and not all assets can be easily split. But a greater concern regarding division of assets it– it is suitable, reasonable and appropriate for the asset to be maintained by one of the parities.

Concerns such as the knowledge to manage certain brokerage accounts, rental real estate, small businesses, etc could put an asset in the hands of someone who is challenged to manage it, growth, it and just plain old live with it.

Questions such as , “Is it better to transfer an assets in kind (maintain the actual stock/bond /mutual fund) or liquid the holdings into cash and then transfer can bring into the picture tax concerns and estate planning issues. Should we do a QDRO with retirement assets or just maintain our own plans assuming they are relatively equal? What about the defined benefit plans which many public workers and military have? How do we value a future value asset today ?

Certified Divorce Financial Analyst

Well the good news is that if you’re in mediation, or at least working together, sky is the limit. Someone like myself with a Certified Divorce financial Analyst designation can help weed through the myriad of pros and cons along with the attorney to find the best split without necessarily splitting everything.

A divorce is probably one of the most important financial crossroads you will ever encounter. Like my dad used to say , “An ounce of prevention is worth a pound of cure.” Spend a little extra money and get the expert advice…you will be very happy you did.

The Engagement Ring – Who Gets It When the Wedding is Cancelled?

When a marriage proposal is accompanied by an engagement ring, and someone breaks the engagement by refusing to marry, is the recipient legally obligated to return the ring?

The usual rule is the person who breaks the engagement probably loses the ring. However, “probably” does not mean “certainly.”

In our culture, an engagement ring which accompanies a proposal is usually considered to be a gift in contemplation of marriage. The underlying assumption is a gift in the form of an engagement ring is exchanged solely for each party’s promise to marry the other.
CA Civil Code §1590 addresses this type of gift. It states: “Where either party to a contemplated marriage in this State makes a gift of money or property to the other on the basis or assumption that the marriage will take place, in the event that the donee refuses to enter into the marriage as contemplated or that it is given up by mutual consent, the donor may recover such gift or such part of its value as may, under all of the circumstances of the case, be found by a court or jury to be just.”

The language of this statute suggests the recipient must return the ring (or the value of the ring) if:

The recipient refuses to marry; or,
Both parties jointly decide not to marry.

However, the rule appears to be different if the donor subsequently refuses to marry. California courts have interpreted this statute to mean the recipient usually has no legal duty to return the ring if the donor refuses to marry.

Unfortunately, there is no certain result if the parties seek court intervention, because:

Even though the statute specifically applies to gifts in contemplation of marriage, legal principles of fraud and other defenses for breach of contract may apply. These principles are numerous, complicated and conflicting. One can never predict how a judge or jury will interpret and apply any of those principles.

One can never predict what evidence will be brought to the court’s attention. Nor can one predict how, or even whether, a judge or jury will consider or interpret that evidence.

The statute itself is ambiguous. It states the donor “… may recover such gift or such part of its value as may, under all of the circumstances of the case, be found by a court or jury to be just. “May” does not mean “certainly.” It means “maybe.” And one can never predict what a judge or jury will “find” to be “just.”

Therefore, depending on who calls off the wedding, the rules are probably as follows:

Recipient refuses to marry, due to no fraud by or other fault of the donor: Recipient returns the ring.
Donor refuses to marry, due to no fraud by or other fault of the recipient: Recipient keeps the ring.
Both parties jointly decide to cancel the marriage: Recipient returns the ring.

Deviations from tradition may substantially increase this uncertainty. Our cultural tradition usually observes males giving engagement rings to females in heterosexual relationships. There is no certainty about how, or whether, these principles might change if:

A female gives an engagement ring to a male, in a heterosexual relationship; or,

A male gives an engagement ring to a male, or a female gives an engagement ring to a female, in a homosexual relationship; or,

Both parties give and receive engagement rings; or,

One of the parties is transgender, or both parties are transgender.

The material on this document is intended for informational purposes only, and does not constitute legal or other professional advice for any purpose. No attorney/client relationship and no confidential relationship of any kind is formed by reviewing or using this material in any way or from any direct or indirect contact with any attorney arising from that review or use. If you need legal or other professional services, consult with the appropriate, competent attorney or other professional.

Five questions parents typically ask in divorce

#1 – How will I survive not seeing my kids every day?

Yes, this is a tough transition but one that needs to happen now that you and your spouse have decided to end your union. Keeping the children’s best interests in mind, mediators work with you to develop an age-appropriate parenting plan that will keep you active in the lives of your child but not active in the life of the other parent. And, keep in mind, the divorce is between the two adults…not between the children and either of the parents.

#2 – How do we work out a schedule for the children in two houses?

Some of the important things to look at include the age of your child, your work schedules, do you travel, and geographical distance between the two houses relative to the location of the child’s school. The important thing is the child get to see each of you regularly and predictably, without interference from either parent. It is the parents’ responsibility to” facilitate” (not impede) the children seeing the other parent consistently, predictably and safely! Several types of parenting plans (i.e. physical custody)are available and designed to be age-appropriate yet flexible enough to meet the needs of the individual family. Private and court-appointed mediators are available to help parents design effective plans. And, be prepared to change the plan as the children get older – their needs change and the plan should too!

#3 – What to do when Mom and Dad can’t stand the sight of each other?

This is certainly understandable in divorce…you’ve decided to end your relationship…the last thing you want to do is see each other! AND, the last thing your kids want to see is the two of still fighting even though you’ve ended the marriage…the stress is too much for them, not to mention both of you. Through structured parenting plans, transitions through the children attending school is best for the children while also minimizing the need for Mom and Dad to see each other. We can also help you identify “neutral” exchanges when transitions happen outside of school time. This is MUCH better for the child and definitely much better for you!

#4 – What is co-parenting vs. parallel parenting? Which is right for me?

Here are several key highlights to consider:

Parents communicate regularly.		Parents communicate over emergencies.
Parents can communicate in person or over the phone.		Parents use email, text messaging, or a third party (attorney, mediator or mutually agreed person).
Major decisions about the child are discussed jointly.		Major decisions are “communicated” rather than discussed.
Parents work together as needed to resolve issues related to the child.		Households are managed separately. Each makes decisions about the child when s/he is in their household.
Parents work together in the best interest of the child.		Parents work separately for the best interests of the child.

#5 – How do we tell the children?

A child’s age is another significant factor in how a child reacts to the changes that come with divorce. They ARE impacted differently at different age ranges. Be aware of what is best to say…and NOT to say.

Still not sure? Get some professional guidance BEFORE you tell the children. And, seriously consider providing the child or children with some short-term therapy/counseling so they have a “safe” place to talk about what is going on. Talking to YOU is not necessarily safe!