Welcome to the Koenig|Dunne blog. We have three different blog series for you to find inspiration and encouragement as you go on this journey:
- Doing Divorce, A thoughtful discussion about divorce: Angela Dunne provides practical advice based on real examples of what she and her clients have faced through the transition of divorce.
- Divorce Made Simple: Our attorneys breakdown the divorce process in a way that is easy to understand.
- Money Matters: Patrick Patino provides a fresh, insightful approach to discussing everyday finances by delving into the financial topics of everyday life.
October is Domestic Violence Awareness month, so we are again sharing Susan’s personal journey on today’s blog.
Domestic Violence Awareness Month was launched nationwide in October 1987 as a way to connect and unite individuals and organizations working on domestic violence issues and raise awareness for those issues. For more information on their work and to obtain additional resources, visit their website http://ncadv.org/
We argued about the garlic in the guacamole. He stormed outside. I stood at the bathroom mirror focusing my shaking hand on my mascara when I heard the front door open and his footsteps on the stairs. He opened the bathroom door, punched me in the stomach, and calmly said, “Now you can tell your friends I’m abusive.”
I was young but I was strong. Confident. Independent. How was I reduced to justifying the purchase of a two dollar tube of lipstick and defending why I wanted to see a movie with a girlfriend? How did I stay with a man who threw the bowl of my freshly made pasta against the kitchen wall as I set the table, cracked the windshield with his bare fist as I drove, and smashed the bouquet of flowers against the mantle as I wept?
Despite knowing that domestic violence is the misuse of power and control, I couldn’t see it clearly when I was in its midst. I compared myself to those I considered “real” victims—the ones with blackened eyes and broken bones and battered children—-as I denied my own reality.
October is Domestic Violence Awareness Month. Despite decades of public education and the fact that one of every four American women reports being physically abused by a spouse or partner at some point, many people still don’t understand intimate partner abuse. Being a divorce attorney taught me that whether you are a welder or an accountant, rich or poor, a Gen Xer or a boomer—you are not immune.
How was I able to move on? First I had to tell the truth to myself. What helped was others gently asking about what I failed to see. “Is this the first time he hit you?” “Do you think that’s normal?” The concerns of others—shared without judgment—helped me to see the seriousness of my situation. “I just called to see if you were safe. I’m worried about you.”
I was lucky. I had enough income, a number of options, and lots of support. The thousands of victims who are killed each year aren’t as lucky.
If you or someone you know is experiencing the warning signs of domestic abuse, let in support now. Call the 24 hour domestic violence hotline at (800)799-SAFE(7233). Develop a safety plan. Call an attorney knowledgeable about protection orders. Don’t wait.
Domestic Violence Awareness Month is the time to be aware of the risks, your rights, and the next small step forward for your family’s future. As for me, the only regret I ever had about my first small step was that I didn’t make it sooner.
“Going to court” can mean many different things during the divorce process. You may have to go to court for a hearing, a pre-trial conference, or trial. Sometimes it is permissible for your attorney to appear on your behalf without the need for you to go. Sometimes the judge will want to hear you testify. Sometimes the judge will read your sworn statement and listen to the lawyers’ arguments in order to make a decision.
The thought of going to court can be anxiety-provoking. The fear of the unknown may set in. It is important to communicate with your attorney so you know what to expect. Your attorney can explain the process in advance. If you do go to court, know that your attorney will be with you at all times to support you.
When a court date is set, we will let you know. As soon as you receive notice from your attorney, confirm whether your attendance is required, and mark the date on your calendar. Your attorney will be able to tell you whether the judge will make his or her decision based on affidavits (sworn statements) and arguments by the attorneys, or if the judge will hear live testimony. In some cases, the parties will wait while the attorneys meet with the judge in his or her chambers (office). Each judge runs his or her courtroom differently. Rely on your lawyer’s expertise in preparing for your specific hearing.
If you plan to attend the hearing, let your lawyer know and determine where and when the two of you will meet. Make sure you know the location of the courthouse, where to park, and the floor and courtroom number. Decide what you’re going to wear. Business casual attire is usually appropriate. Do not wearing anything distracting, such as flashy jewelry. You want the judge to focus on the issues, not your attire. Planning such simple matters ahead of time will alleviate stress. Sometimes having additional support, such as a friend or family member to accompany you, may be appropriate. Talk with your attorney first to see whether this is advisable.
If you are afraid to see your spouse at the courthouse, make your lawyer aware of this fear. There are options to minimize contact with your spouse. Your lawyer knows the layout of the courthouse and will be able to make sure you are comfortable as possible in your surroundings.
Divorces will proceed to trial if settlement negotiations fail. Your lawyer will help you fully prepare for this court appearance. There are no juries in family law matters, and usually, the only people who will be present in the courtroom are the judge, court reporter, attorneys, you, and your soon-to-be former spouse.
In some cases, there will be many hearings (often on procedural matters that do not require your attendance). In other cases, you will never step foot in the courthouse. It all depends on your unique circumstances. Going to court is not an inevitable part of the divorce process. And if you do have to go to court, lean on your legal team to fully support you.
I was hovered over the toilet scrubbing with my magic wand – the toilet brush. Sophia, then 6, paused at the top of the stairs next to the bathroom door and peered in at me. Sheer delight spread across her face. “Mom! Are we playing Cinderella?” she asked with enthusiasm. I wiped a bit of sweat from my forehead, “What??” She seemed as confused as I was. “No, I am not playing Cinderella. I am cleaning the bathroom.” “Oh,” she sighed dejectedly and walked away to her room.
I sat back on the white tile floor and leaned my back against the bathroom door. “Where did that come from?” I asked myself. Cinderella? Why would she think her sweaty, apron-wearing mom was playing a game? What did she think – magical fairies came and cleaned our house at night when we were sleeping?
It hit me like the Fairy Godmother herself had arrived in my bathroom. I was making a rookie divorced parent mistake. Forget Disneyland Dads, have you heard about Cinderella Moms? You know who we are.
We are the moms who hustle and bustle during the days we do not have our children. You may have been jealous when you saw us doing our shopping in Target without our kids. We get our haircut, do our grocery shopping, take silk shirts to the dry cleaners, not only clean the bathrooms, but do dusting, vacuuming, magic erasering, and light switch cleansing. We work late. We stock the cabinets for the week ahead – maybe even plan a weekly menu. We get treats ready for the classroom or the soccer field. We do it all in the time we do not have our children.
What do we do then when we do have our children? Whatever they want! We bake cookies, go on play dates, go the zoo – a movie – a museum. We are up for whatever fun thing they want to do. We are perpetually the Yes! moms born from the “Yes Day!” book by Amy Krouse Rosenthal.
We are doing all the fun things to make them forget they have divorced parents. We are over-compensating. We are setting them up with unrealistic expectations. We are creating a fairytale world for them where errands do not need to be run, parents do not work late, and house chores are non-existent.
I saw immediately the damage I was doing. My girls were never seeing me do household work. They were not present for the hour I was hunched over my laptop paying bills or gathering my tax documents. They were not seeing me cram all of my household management duties in a few hours. Sophia was clearly surprised to see me cleaning a toilet.
That night I put together a Household Chore Chart. Up until then, that concept was foreign to my 6 and 8 year old daughters. Thereafter, every other Saturday when they were with me, we spent Saturday morning completing our tasks. They would help with dusting, swiffering, and tidying. Soon they learned how to do laundry, the dishes, and taking out the trash. They learned the critical skills of maintaining a household and being respectful of your family members by minding your space and taking care of it.
This likely would not have a been a wish they wanted granted from a Fairy Godmother, but I could see the magic in learning this valuable lesson and passing on an even greater one to them.
Sometimes clients are surprised by what their spouse asks for in the initial documents filed in a divorce. These documents, known as “pleadings” are filed with the court and state the legal basis for the cause along with the requests of each party.
In a divorce, the first pleading filed is the complaint for dissolution of marriage. The divorce complaint is signed by the person initiating the divorce process, and then filed with the clerk of the district court to begin the divorce process. The complaint for dissolution of marriage will set forth in general terms what the plaintiff (the person who filed) is asking the court to order. For example, the complaint may address the plaintiff’s position regarding custody, division of property, payment for expenses for the children, alimony, and attorney fees, among other issues.
The defendant then files a written response to the complaint for dissolution of marriage. This written response is called an answer, which serves to admit or deny the allegations in the plaintiff’s complaint. Typically, the defendant also files a counterclaim. The counterclaim will address the defendant’s position regarding the issues in the divorce.
While these documents state each party’s positions in general terms, sometimes the specific requests in these documents can be surprising or hurtful for the other spouse.
Here’s an example. You and your spouse have discussed at length that you believe sharing joint custody of your minor children is in their best interests. However, upon consulting with your lawyer, she advises you to request the “maximum relief possible” from the court in the complaint and request sole physical custody. Your spouse, expecting your complaint to reflect your verbal custody agreement, may be surprised or feel hurt.
Many times lawyers will advise their clients to request the “maximum relief possible” under the law in Nebraska in the initial complaint, regardless of any prior agreements reached between the parties. While there are several strategic and procedural reasons for this, in general, if the maximum relief possible is requested in the initial document, the court has the ability to grant it.
If you and your spouse agree at the beginning of the case that you will share joint physical custody and then, there is a change of circumstances in the middle of your case that causes you to change your mind about this agreement, a complaint that sought the maximum relief possible regarding custody will not need to be amended and the court will be able to award you the custody arrangement you seek.
If your complaint requested an award of joint physical custody and you subsequently change your mind, your initial complaint may need to be amended and the strength of your new legal position regarding the custody issue may be jeopardized.
However, in this example, just because your complaint seeks sole physical custody, your settlement position may remain that you share joint physical custody with your spouse.
Talk to your lawyer about your goals and wishes regarding each issue in your divorce. Keep in mind that if you receive a formal pleading that sets forth allegations or positions that surprise you or seem inequitable, know that it the other party may simply be requesting the “maximum relief possible” under the law, but the final agreement or order that is entered may look different.
You may be struggling with your debt, wading through a sea of information and misinformation online regarding possible solutions. Most quests for knowledge start with a question posed to Google. “Should I hire a bankruptcy attorney or hire a debt settlement company?” On the radio, you may have heard the tantalizing advertisements where a debt settlement company promises to get you out of debt without filing for bankruptcy.
Pay 50% of your debt. Be debt free fast. The debt settlement ad usually also mentions a key fear of anyone struggling with debt, if you file for bankruptcy you will lose your house, car, and other personal possessions.
First, in well over 90% of Chapter 7 bankruptcy cases, the person who discharges their debt retains all of their property. However, I have seen situations where a person liquidates a retirement account to settle debt only to later find out that their retirement would have been 100% protected in a bankruptcy in Nebraska. The other downer was that the liquidated retirement money only went to paying for a debt settlement company’s fees and not towards any of the person’s debt.
Second, many people struggling with debt are not in the position to pay on any of their debt let alone settle it for 50%. When your income is just enough to cover basic living expenses (housing, food, clothing, transportation, etc.), a bankruptcy that discharges your debts makes the most sense. Hiring a debt settlement company almost always delays the inevitable.
Third, a bankruptcy is the faster and more efficient solution. The Chapter 7 bankruptcy can take only 3-4 months and it handles all of your debt at one time (with some exceptions like student loans and some tax debts). A debt settlement company may not be able to settle your debts for 2-3 years. Additionally, many creditors require you to default and be in default for quite some time before being open to settling. While they wait, interest, penalties, and even attorney’s fees accrue.
Fourth, the cost of filing a Chapter 7 bankruptcy is extremely affordable as compared to a debt settlement company’s fees. The general cost of a consumer Chapter 7 case can range from $1,500 to $2,500. A debt settlement company charges a percentage of the cancelled debt. Additionally, you may be at risk of paying taxes on the cancelled portion of the debt.
For example: You had $10,000 worth of credit card debt. By the time the debt settlement company settles the debt, you owe $15,000 because of the accruing interest, penalties, and attorney’s fees. After liquidating a retirement account, you pay $7,500 to the creditor as a part of the settlement. You pay 20% of the cancelled amount ($7,500), which is $1,500, to the debt settlement company for its fee. The total you paid was $9,000, which is only $1,000 less than the original principal balance. On top of that, you receive a 1099-C at tax time and may owe taxes on the cancelled portion of the debt. Overall you may end up paying back 100% or more of the original debt.
If you filed a Chapter 7 bankruptcy instead, you would have paid $1,500 to an experienced bankruptcy attorney. You would have kept your $7,500 retirement account. You would have eliminated your legal obligation to pay the $10,000 debt and would suffer no potential income tax consequences come tax time. In effect, you saved $8,500 and achieved the same end result.
When figuring out how to handle your debt, it can be overwhelming. Meeting with an experienced debt resolution attorney who can comprehensively provide you with your bankruptcy and non-bankruptcy options is a good place to start.
The mood was somber. Every Monday morning we take 15 minutes to check in with each other. All of my co-workers gather and we look at the week ahead. This week we all woke to the horror that happened in Las Vegas Sunday night. Our hearts were heavy and our minds distracted as we felt ourselves lapsing into the “what if” questions that come to the forefront when facing tragedy. One of our paralegals had been in Vegas the weekend prior. All of us have been to an outdoor concert or public event. None of us know whether we, or our families, are safe from the violent acts of the next unknown assailant.
It is hard to write during a week when so many emotions are shifting inside of me – competing back and forth between my mind and heart. My mind knows I am safe and I am not grieving the loss of a loved one. My heart aches for the many hundreds who are. I am angry at how this could have happened. I am hopeless that it cannot be stopped.
I think of the now longer list of places I never want my children to go without me: movie theaters, malls, department stores, schools (elementary through college), churches, pedestrian boardwalks, and now outdoor events. I need to be there to lay on them in protection, or to drag them to safety, or to push them far away from harm in the event of an attack.
I read about people who endured the stampede as they laid over their loved ones. One man was killed while lying over his wife – protecting her. As any parent will tell you, we would do it for our children on instinct. It may not be so instinctual for our adult relationships.
I messaged one of my closest and oldest friends. “You would have laid on me.” His reply – “Yep.” I have not stopped thinking about the people who I would have laid down on in protection or the people I know who have smothered me down to the ground to save me.
This week I am choosing to focus on this. I am choosing to focus on the love that runs deep in my life. Deep enough that I know I would risk my life to save another and there are those who would do the same for me. This week I live in gratitude, albeit with a sore heart, as I count my life rich in relationships. No matter our circumstances or situations in life, at any season, we can always choose to be mindful of those who matter most to us. It is because we love that we grieve, but it is also because we love that we live.
Parents involved in custody actions are eager to know how a judge will decide custody of their children. The Nebraska Parenting Act provides that the paramount concern in any decision regard custody, parenting time, or other child-related issues is what is in the minor child’s best interests. This standard is simply known as the “best interests of the child” standard. It is a child-focused approach to making decisions that affect the well-being of the child.
Nebraska law provides a non-exhaustive list of factors that a court may consider when determining what is in the best interests of the child. For example, a court may consider:
- The relationship of the minor child to each parent prior to the commencement of the action or any subsequent hearing;
- The desires and wishes of the minor child, if of an age of comprehension but regardless of chronological age, when such desires and wishes are based on sound reasoning;
- The general health, welfare, and social behavior of the minor child;
- Credible evidence of abuse inflicted on any family or household member; or
- Credible evidence of child abuse or neglect or domestic intimate partner abuse.
Courts may also consider:
- The moral fitness of the child’s parents, including the parents’ sexual conduct;
- Respective environments offered by each parent;
- The emotional relationship between child and parents;
- The age, sex, and health of the child and parents;
- The effect on the child as the result of continuing or disrupting an existing relationship;
- The attitude and stability of each parent’s character; or
- Parental capacity to provide physical care and satisfy educational needs of the child.
It’s unlikely that one factor on its own will determine what is in the child’s best interests. Rather, a court will look at the big picture, apply the above factors to the facts of your case, and weigh them accordingly.
The “best interests” standard will carry throughout the course of your case whenever decisions affecting your child are made. When preparing or mediating your Parenting Plan, weigh the decisions you’re making against the “best interests” standards. For example, when you and your co-parent are brainstorming a routine parenting time schedule, ask, “Will this schedule be in my child’s best interests?” Often times parents drift away from this standard and focus on what’s in their own interests. It is important to keep your child’s developmental needs and well-being top-of-mind throughout this life-changing event.
“Angela? Party of Four.” We waited patiently on the bench in the Chicago airport for our table at the crowded eatery during our layover to a short weekend vacation. We watched and waited for the other Angela to get her table. “Angela? Party of Four!” The server tried again, annoyance seeping into her voice. My eldest daughter said, “Mom I think she means us.” I stood up and tentatively approached the counter, my two daughters behind me. “I am Angela, but there are only three of us.” “Follow me,” the server replied, setting down the extra menu and extra napkin rolled around silverware.
“Mom, why did she say party of four?” Anna asked. “She thought there was a husband with me,” I said. This wasn’t the first time this happened. It actually happens more than you would think. A hostess or someone at a ticket counter when seeing me with my daughters assumes their dad will be joining us. I guess that they imagine him parking the car and joining us any minute.
The difference this time was that my daughters were awake to it. They were upset by it. In an instant they felt defined by this innocent interaction as a “less than” family. Anna was annoyed and my youngest, Sophia, was picking up on her vibe and joining in. “That’s so rude.” At 13, of course she is sensitive to the “norm” and wanting to be a solid member. I casually dismissed it – “We are an awesome party of three.”
It reminded me of when the girls were younger. Post-divorce I was in a relationship and nearly a year into it they were finally told. They immediately fast-forwarded my relationship to a new marriage, just like their dad had, and asked me if we could get the stick figure family for the back of the car window. “What?” I asked. “The family on the back of the car window! We could get the cats too!” They excitedly chattered between their 9 and 7 year old selves.
They want to be “normal.” Most of us do. They crave fitting in and being a regular family. Divorce is a difference divider. We are different than most of the families they know. Very few of their friends have divorced parents and two homes. I have attempted over the years to normalize our family. I am never deterred from participating in events that are family focused. Sometimes, we are the only family obviously missing a member. Sometimes, there are lots of families that look “different.” I look on the bright side. At an earlier age than most, my girls started learning the value of being unique and different – and valued nonetheless. They are going to be experts at not letting their circumstances dictate their worth by the time they are adults.
Ironically and beautifully, I had packed a sewing kit for our brief vacation. I smiled when I pulled it out the next day and started stitching with gusto. When I finished two days later, I proudly presented the finished project to my girls. “Mom!” they squealed. I had stitched our family. Us. Party of three – plus our cats. Personalized and perfect.
How you will maintain health insurance coverage during and after your divorce is an important issue to be considered. Your options may be complex and expensive, and the impact of having a lapse in coverage can range from unfortunate to disastrous.
Divorce is considered a Qualifying Life Event, which makes you eligible for a Special Enrollment Period, allowing you to enroll in health insurance coverage outside of the yearly Open Enrollment Period, which generally takes place in November or December of each year. Below are 5 options to consider for obtaining post-divorce health insurance coverage.
Remain on Ex-Spouse’s Health Insurance Plan for 6 Months:
If your spouse currently provides health insurance for you, you may be able to remain on his or her health insurance plan while your divorce is pending.
Once your divorce is final (i.e. the judge has signed the Decree of Dissolution of Marriage), it may be possible for you to remain on your ex-spouse’s employer-sponsored health insurance plan for up to 6 months following the entry of the decree. However, not all employer-sponsored health insurance plans in Nebraska offer this benefit. It is important that you check with your spouse’s employer to confirm whether you will be allowed to remain on your ex-spouse’s health insurance for 6 months after the Decree is final.
Elect COBRA Coverage:
If you are not allowed to remain on your spouse’s plan for the 6 month post-divorce period, investigate the costs of continuing on your spouse’s employer-sponsored plan pursuant to federal law, COBRA. COBRA allows a former spouse to continue to be covered through their ex-spouse’s employer-sponsored health insurance plan for up to 3 years. However, be aware COBRA coverage can be very expensive and there are strict deadlines associated with electing COBRA health insurance coverage. Make sure you research this option before your divorce is finalized so you know what actions you need to take if you intend to elect COBRA coverage.
Health Insurance Through Your Employer:
If your current employer offers an employer-sponsored health insurance plan, contact your human resources department to obtain the current health insurance benefit summary. Obtaining insurance through your employer will likely be the least expensive option if your employer pays a portion of your monthly premium.
Nebraska Health Insurance Marketplace:
Individuals and families may utilize the federal health insurance marketplace to obtain health insurance in Nebraska. You can apply for health insurance through the marketplace online at www.HealthCare.gov. When applying, you will need to provide your income and household information. It’s possible you may quality for tax credits or other savings options to make your health insurance plan more affordable.
In Nebraska, the Medicaid program offers medical services for individuals with children who are not able to afford medical services and for others who meet certain eligibility requirements.
To apply for Medicaid, you can fill out an application online at www.ACCESSNebraska.ne.gov or call the service line at (855) 632-7633 and request a paper application.
The Affordable Care Act, a federal law, requires most people to carry health insurance. If you choose not to enroll in a health insurance program after your divorce, you may face a tax penalty. Don’t wait until after you are divorced to begin to consider your options. Do your research, pay attention to deadlines, and be sure to factor the future cost for health insurance into your post-divorce budget.
You agree with your spouse to meet with an attorney regarding your financial issues. The first thing your spouse says is that you no longer own your home. You freeze. You’re still living there. Your spouse says that you lost your home because you failed to pay your property taxes and have been renting the home for several months from the new owner. The attorney hesitates before informing you that a bankruptcy won’t help you regain ownership of your home. He continues that had you filed a Chapter 13 before the tax deed transferred ownership, then you would have had an opportunity to pay the property taxes owed in a plan over 3-5 years.
This situation occurs frequently with varying degrees of severity. Your spouse could have told you that he or she paid a bill that you just received a garnishment notice for from your employer. Your car lender repossesses your car without warning because the car insurance has lapsed without your knowledge. In any partnership, it is common for there to be a division of labor with one spouse managing the household finances. However, it is important that the non-managing spouse to have a general understanding of the state of household finances. Here are some tools and tips for spouses to ensure that understanding:
- Review monthly bank statements, retirement statements, billing statements, and tax returns. When the statements come in the mail or in a paperless format, set aside time to review the documents with your spouse. This will increase your mutual understanding of your financial situation and protect you against any unexpected financial issues in the future.
- Monitor your Credit Report. Use a free service like creditkarma.com to know what is going on with your debt. Your credit report will show whether any of your accounts are in default or any of your creditors have filed lawsuits against you and received judgments.
- Create separate budgets and compare. Now that you are reviewing your financial information, create a budget separately from your spouse then compare. Hopefully, this will inspire a conversation about your financial goals and motivations. Try using a free online tool like mint.com to assist you with managing this aspect of your finances.
- Seek support from an accountant, financial advisor, or attorney. You may need assistance with understanding your finances with ease. Many professionals in the financial services industry offer free consultations to advise you of your options and to dispel common misconceptions regarding personal finances. If you unexpectedly find yourself in financial distress, it is helpful to have already built a meaningful relationship with a financial professional who can advise you knowing your goals and what matters most to you.
It is never too late to initiate these good habits. If you need some tools to have that courageous conversation about finances with your spouse, refer to my last blog. Your finances impact every aspect of your life. You don’t have to be in the dark about them. Start today and take control of your financial future.
This week Angela was heartbroken by the news she lost a client to suicide. She again shares this message about depression and seeking help.
The morning my divorce decree would be signed, I lay in bed on a tear-soaked pillow feeling like I could stay there the rest of my life. That dull morning, I could have sworn three hundred pounds of weight was stacked on top of me.
It felt gray and sad and shameful to get divorced. The light in my eye was snuffed out and had been for some time. For the last year, leading up to and during my divorce, my expressions were muted and my stature slumped. I spent the year prior to this day grieving and reeling from the divorce process and today the final document was going to be signed. It brought little relief.
I remember hours and hours playing a mind-numbing Wii puzzle game in those first days when my girls were away from me as I tried to ignore my sadness. I recall mornings waking up with the tears already leaking down my face. There were days when my only meals were bowls of Frosted Flakes. Brushing my teeth at the end of the day was a dreaded chore. I was overall sluggish. I was depressed. I was on anti-depressants. I was horribly sad. I was seeing a counselor. I felt an overwhelming sense of hopelessness that I had never experienced.
I remember all the lethargy that accompanied that year of divorce. Notwithstanding the constant feeling that my feet were being pulled down by quicksand, I couldn’t let my life stop. I still had a law firm to run, bills to pay, clients to care for, and daughters to parent. I look back now and feel amazed that I got through it.
I have yet to find a client who doesn’t experience depression on some level during the divorce process. I have yet to find a client who doesn’t report some sleepless nights. I have yet to find a client who goes through divorce anxiety-free.
One woman told me about her year leading up to scheduling an appointment to discuss divorce. Her husband’s drinking had resumed with a troubling frequency, she had lost both of her parents within months of each other, and she had faced a diagnosis of cancer. Depression was nearly an afterthought to all that she had been managing. She was worried about her husband and her safety. She was grieving the loss of her parents. She was terrified about how she would manage her health with a now neglectful husband and with her only family now gone. All the while, she was also raising their three school-age children.
I asked if she sought counseling support for her mental health. She said no. I asked if she was taking an sleep aids to help her get the rest she desperately needed. She said no. I asked her if she was taking an anti-depressant or an anti-anxiety medication. She said no. My eyes widened as I asked her how she was surviving every day. Tears welled in hers as she replied she was afraid that the court may judge her for needing help and that custody of her children would then be at risk.
More clients than I can count have looked at me with worry when telling me that they suspect depression. They are worried it will impact their case.
The stigma attached to depression, even in the midst of going through divorce when depression may be expected, causes reluctance for us to be truth tellers about our struggles. We hide it. Yet I know from helping hundreds of clients, and from my own circumstances, that depression is more likely than not to impact you or someone you know.
The importance of addressing depression and anxiety is critical during a time in which your energy must be used efficiently and wisely. You are not only getting yourself up and through these days, but your children as well. If you are ignoring your mental health and failing to rest and restore your energy, you will likely be ineffective in supporting your children to manage their own. Remember the wise advice from the airlines: Always put your oxygen mask on before assisting your children.
Although it may seem counter-intuitive, the courts will applaud parents who seek support for themselves and their children to manage these difficult transition days. They will place more judgment on a household where suddenly a child’s grades are slipping or there are reports of behavior outbursts because a parent has stayed in silent suffering, consequently causing an appearance of neglect.
Think back to my client. Do you hold judgment for her in experiencing depression and anxiety? Would you condemn her for seeing a counselor? The judge is no less human than we are and would look at her situation with the same compassion. However the judge would only be able to do so if she was courageous enough to admit to the hardness of her days.
We must find the courage to get support. Tell the truth about how you are feeling. Tell a family member, a friend, your lawyer, a counselor, or a trusted advisor. Don’t be embarrassed by it or hide from it. It is expected and normal during this time of intense change and grief.
If your case involves minor children, a determination of the custodial arrangement that is in theirs best interests will be made. In Nebraska, there are two types of custody – legal and physical. Each serves a different purpose, and there can be variations on how legal and physical custody is awarded. Remember – the paramount concern in the court’s eyes is which arrangement will be in the best interests of your children, not what is in the best interests of the children’s parents.
Legal custody refers to the power to make fundamental decisions regarding your children. Fundamental decisions can include the school your children go to, what religion they should practice, and who their health care providers are. Generally, a court will either award one parent legal custody or award both parents joint legal custody.
If a parent has sole legal custody, he or she is the primary and final decision maker for these important decisions.
If parents share joint legal custody, then they will share equally in the decision making for their children. The Nebraska Parenting Act defines joint legal custody as the “mutual authority and responsibility of the parents for making mutual fundamental decisions regarding the child’s welfare, including choices for education and health[.]” Joint legal custody is generally recommended when the parents are able to effectively communicate with one another and have similar parenting philosophies.
Sometimes, a court may award one parent legal custody over one fundamental decision (e.g., school) and award the other parent legal custody over another fundamental decision (e.g., religion). This means that one parent will have the final say for certain decisions and the other will have final say for other decisions. Variations of sole and joint legal custody are possible. The determining factor will be which variation is in your children’s best interests.
Note: legal custody is not the same as parental rights. If your spouse is awarded legal custody, your parental rights to your children are not affected. Parental rights are those that are inherent by virtue of the parent-child relationship. Legal custody only determines decision making power.
Physical custody refers to the physical location where your children reside and is interrelated with parenting time and child support. Like legal custody, one parent may have sole physical custody, or both parents may have joint physical custody.
If a parent has sole physical custody, he or she has the children under his or her control for a majority of the time. In a one-year period, if a parent has the children for 70% of the year (or approximately 256 days), then that parent is considered to have physical custody. Of course, the other parent retains his or her right to parenting time.
The Nebraska Parenting Act defines joint physical custody as the “mutual authority and responsibility of the parents regarding the child’s place of residence and the exertion of continuous blocks of parenting time by both parents over the child for significant periods of time[.]” Typically, a custodial arrangement is considered “joint” if the parents share time with the children equally (50/50) or up to a 60/40 basis.
In cases where there is more than one child, some parents may consider splitting custody. Split custody is different from joint physical custody. Split custody means one parent is the primary physical custodian of one child and the other parent is the primary physical custodian of the other child. Given the importance of sibling relationships, this arrangement is rare.
The designation of sole or joint physical custody has a direct impact on parenting time and child support. Be sure to talk with your experienced family law attorney about these implications before agreeing to any arrangement.
Note: if one parent is awarded physical custody, that does not mean that he or she will have the children 100% of the time. The non-custodial parent will have the right to parenting time which will be spelled out in your parenting plan.
“Are you planning on getting Sophia’s birthday cupcakes for her class tomorrow?” I asked. “Well, it wasn’t on my radar,” he replied. Due to a schedule change my daughter’s dad would now have her the night before her birthday and also the night class treats would need to be prepared or purchased.
I pushed forward. “Not on your radar because you forgot, because you think she is too old, or because you want me to do it?” “I guess I can do it if she wants them. I guess.” He replied. Annoyance pricked at my tense shoulders. I was about to fall headlong into the fine-I-will-do-it-myself martyr trap. Of course she wanted to take birthday treats to her class to celebrate her birthday. Grumble. Snarl.
I should probably back up and provide context for the source of my possibly irrational irritation. For my daughters’ entire lives, I have been their birthday queen. I put on all the parties complete with handmade décor, theme crafted plates and party favors, and homemade treats delivered to school in my bright blue cupcake carrier. I have always hosted their birthday parties. I have always supplied the birthday treats. I would probably crumple up in a pile if they or their dad had ever asked that their party not be at my house.
I did not see, until this year, how my insistence in being the birthday fairy had put our family unfairly out of whack. You see, Sophia had asked me, prior to me messaging her dad, if I was bringing her birthday treats to school the next day. I told her that she would be with dad and I was sure he would get them. She told me that he never would. I was angry when she said this. Not at her – at him. How dare he give my daughter the impression that her birthday was not the most important day of her year. I reassured her that of course he would.
Fast forward to me gripping my phone and glaring at the “I guesses.” I fired back and told him what she had said about him. He said that all she had to do was ask. I dropped it. I was grumpy and had a pit in my stomach. That pit is my reliable and well-worn cue that I was wrong. I couldn’t see it.
And then I could. For all of my daughters’ birthdays I was being the kid in class who always shot her hand up first to blurt out the answers. I was the impatient person completing the contemplative person’s sentences. I was the bone-tired hostess cleaning up the kitchen before the food on the plates had turned cold.
I was butting my way into all of their birthday activities. Of course my former spouse did not have buying cupcakes on his radar. He likely thought I was at home that very minute researching Pinterest to up the ante from last year’s rainbow cupcakes. I was feeling annoyed that he wasn’t actively participating, yet I had never one time in the last thirteen years of our raising kids together allowed him to so much as fill out an invitation.
I had created this dependence. It was not fair for me to now deny that I had done it. As parents we all do it. We want to be needed. We want the love for our children to shine in undeniable ways. We stake our claim to our children’s affection and we hold on at any cost. Unfortunately, this time it cost my daughter and her dad.
That night Sophia sent me a video from her dad’s house excitedly showing me the cupcakes they got for school, the birthday gifts she received, and beamed about the fondue dinner they had in her honor. I shamefully wiped away some tears as I saw how special her dad had made her feel for her birthday. I needed to step aside to let him step in and be the capable co-parenting cupcake king.
The biggest fear parents have during divorce is the impact it will have on their children. Putting the needs and best interests of your children first during a divorce can look different for every family.
Even during a time of great stress and turmoil, parents have a responsibility and opportunity to truly support their children. One way is to remember your child’s rights.
1. Your child has a right to love both of their parents.
2. Your child has a right to not to have to choose between their parents.
3. Your child has a right to not to have to listen to either parent talk badly about the other parent or his or her family.
4. Your child has a right to express feelings and have those feelings acknowledged by their parents.
5. Your child has a right to have contact with both parents at appropriate times, regardless of the parenting schedule.
6. Your child has the right to have their things at both parents’ homes and have it acknowledged that they child have two homes, regardless of how much time they spend at each.
We know you want to be the best parent you can be during your divorce. Keeping the above rights of your child in mind during the divorce process can help your actions be aligned with your intentions when the going gets tough.
If your child is of appropriate age (generally ages 8 and up), we encourage you to discuss these rights with your child to create an environment in your home that fosters open and honest communication and to support your child through this transition.
September. So many of my greatest joy of my rich life were delivered to me in September. The birth of my first child. My admission to the bar. My memorable annual fall weekends with women friends. The unexpected, unforgettable kiss that left me dazed.
September also brought me my darkest hour–my husband’s quiet death as I slept beside him.
Six years after my most sorrowful September, the month of September still ushers in my favorite season. The colors of the earth bring the warmth that my heart longs for. The crispy coolness incites the back to school urge to launch new projects while the melancholy of memory makes me cling to the comfort of the quilt made of his shirts. September gifts the crystalline blue sky along with it a reflection of who I am, where I am, and what is next.
People often ask us who we are by asking about our relationships. To the question, “Are you married?” I have given many answers in my life. No, yes, no—divorced, yes, no—widowed, and now, a simple no.
When September changed my answer to “no” six years ago, I somehow imagined it wouldn’t still be “no” a half dozen years later. After all, up until then I had been married the majority of my adult life and I somehow just always saw myself as a person who lived her life as a committed partner in love.
With this September’s reflection, I observe myself in a new light. This past year I began to refer to myself as “single.” I also heard, “I’m too young to settle down” blurted from my mouth with the nervous laugh of one fearing judgment—this from the woman who is a year away from social security eligibility
After a marriage ends, we may be filled with grief or we may be filled with excitement, depending on our circumstances. We have beliefs about who we are and what our life will look like. We may worry about lonely nights or feel a newfound freedom. We may feel an urge to instantly begin dating or swear off relationships for a lifetime.
This September’s wisdom reminds me that I cannot know what my future will hold. It informs me that I am more than my marital status. Who I am includes a host of relationships that matter to me, from clients and co-workers to neighbors and new friends. It directs me to see that where I am is more than “not in a marriage.” I am a mentor to the young entrepreneur, an advocate for social justice, a cheerleader for the arts, a rooftop hostess, and an eager student with a stack of books by her bedside.
As this September unfolds, if you find yourself in the dark hour of divorce, may your reflections remind that you are more than the answer to the question, “Are you married?” As you look in the mirror, may you see all of the beauty the season brings, and all of the beauty of you.
During the pendency of your divorce, you and your spouse may gather information needed to resolve your case. This process, known as discovery, is the formal exchange of information. It helps prepare a case for trial, narrow issues in the case, facilitate settlement, or eliminate any surprise at trial. You may receive discovery requests from your spouse (or your spouse’s attorney). You may also send discovery requests for your spouse’s completion.
In discovery requests, parties may request not only relevant information, but also information which may lead to relevant information. You may be required to provide information in your discovery responses that ultimately would not be admissible at trial.
Here are the five common types of discovery that you may encounter during your divorce:
- Interrogatories. Interrogatories are written questions that one spouse sends to the other spouse for completion. The spouse receiving the interrogatories must answer in writing, under oath, signing before a notary.
- Requests for Production of Documents. This type of discovery is a formal request for documents that a spouse believes is needed to have a full picture of the issues of the case. Documents are not limited to paper documents; they can be pictures, voice mails, emails, text messages, and so forth.
- Depositions. Depositions involve the asking and answering of questions, under oath, outside of the courtroom, and in the presence of a court reporter. Click here to read more about depositions in Nebraska.
- Requests for Admissions. Requests for admissions are written statements asking a person to admit or deny a fact. Unlike interrogatories, this method is primarily used for getting to the truth, not for gathering information. When responding, no explanation for admitting or denying the statement is required unless you have no knowledge of the statement or if you are admitting part and denying part of the statement.
- Subpoenas. A subpoena is a court order compelling a third party to produce requested documents. Subpoenas issued in divorce cases are often sent to financial institutions or employers in order to obtain documents directly from the records keepers. To issue a subpoena, a party must provide advance notice to the other party of his or her intention to serve a subpoena on a third party. If there is no objection, the subpoena is issued. Subpoenas can be an efficient way to obtain accurate documentation on a party’s income, benefits, retirement accounts, and bank accounts.
Not all divorce cases will involve extensive, formal discovery. Talk with your experienced family law attorney about the types of discovery needed for your unique circumstances.
“I’ve got it!” I thought smugly to myself. The perfect birthday gift for my soon-to-be eleven year old had finally lit the light bulb in my brain. I would make her a How To Be A Tween box. It would be filled with practical items, some fun things, and best of all – a year-in-review photo book from her 10th year. Brilliant, I thought, mentally hugging myself.
My Sophia very much enjoys the spotlight and a photo book highlighting her would be a welcome and appreciated gift. I excitedly started downloading pictures to Shutterfly starting with last September. I designed fun pages from her birthday party last year. Then I moved on to our pumpkin patch trip. Then Halloween I took her trick or treating – her first year going with a friend.
As I continued the chronological chain, I downloaded pictures of our family Thanksgiving. The next click on in my digital photo file showed my two daughters with their paternal grandparents at Thanksgiving in Texas. It was a picture that had been downloaded to my computer from my eldest daughter’s phone. Huh. I forgot they went to Texas for the actual Thanksgiving Day last year.
I rammed right into the wall of what-ifs. What if I don’t include this picture? What if I do? What if this book only represents half of her tenth year? What if this book ends up making her sad because it doesn’t include time she spent with her dad? What if this is a terrible idea?
Familiar frustration welled up inside of me. The “I-hate-being-a-divorced-parent” frustration. It is a twin frustration to the times when I cannot buy cute welcome signs for my house that read “The Dunnes” because my last name is not the same as my daughters. The frustration is irrational. It is emotional. But it is powerful. I wanted to delete the stupid photo book project and just order her a Harry Potter sweatshirt I knew she would like.
I was suddenly stuck in my sadness. I didn’t know what to do. Do I delete it? Do I ask her dad for pictures and make the project a lot bigger than I knew I had time for? Do I include a couple of pictures she sent me from various activities and trips she had with her dad?
I had to snap myself out of this and decide what to do. I asked a trusted friend for input. In letting the dozen questions bulldoze out of my mouth in a matter of seconds, I spotted it immediately. I was overthinking this. “I am overthinking this aren’t I?” My friend tried to hide her smile.
Another set of what-if’s settled in. What if this book was actually about my daughter? What if she wasn’t really going to care about the circumstances surrounding the book and photos and was going to be more interested in looking at what color her braces bands were on her teeth at various points during the year. What if she was going to be completely fine with it being a photo book of half her year because it will be a book at her mom’s and she is used to that? What if I knew she was going to love it and I just let it be?
As a divorced parent I am prone to overthinking my daughter’s status as a “child of divorce.” I make it more about me than I should. I worry more than I need to. I too often look past all of the signs that she is thriving and happy and growing up with ease in her mom’s and in her dad’s households. I get too focused on making sure I am picking up any pieces and miss out on the larger perspective.
I know my daughter is going to love this photo book that is all about her. I know it because it is a book filled with her happy days and memories. I now see the big picture and I know my big girl will too.
Do I have to pay income tax when my ex-spouse and I transfer property or pay a property settlement per the terms of our divorce decree?
No. The transfer of property (or payment of a property settlement payment) pursuant to a divorce decree is not taxable. However, you’ll want to keep in mind the future tax consequences of a subsequent sale, withdrawal, or transfer of assets that you received in a property settlement.
Does the payment or receipt of child support impact my taxes?
No. Child support is not taxed as income to the parent who receives it nor deductible by the parent who pays.
Is the amount of alimony I pay tax deductible?
Yes. Alimony, or spousal support, that is paid pursuant to a court order is tax deductible. This can also include other forms of court-ordered financial support provided to your former spouse (not child support or a property settlement payment). For example, if you are required to pay the mortgage and car insurance for your former spouse, the Internal Revenue Service may consider those payments a form of alimony and may be tax deductible. Talk to your tax advisor for more information.
Should I file a joint income tax return with my spouse during our divorce proceeding?
Consult with your tax advisor to determine the risks and benefits of filing a joint return with your spouse. Compare this with the consequences of filing your tax return separately. Discuss with your attorney any concerns you have regarding the accuracy or truthfulness of the information your spouse provides on the return. Prior to filing a joint return, try to reach an agreement with your spouse about how any tax refund or liability will be divided. If your spouse refuses to file a joint return, the court cannot force him or her to do so. However, the court may penalize your spouse for an unreasonable refusal to do so.
During and after the divorce, who gets the claim our children as dependents?
While the judge has discretion to determine which parent can claim the income tax dependency exemption(s), when child support has been ordered, the court generally will order the exemptions be shared or alternated. However, most judges will require that the payor of child support be current on any child support obligation in order to claim the exemption.
We all have conversations that we need to have, but, for numerous reasons, haven’t. As we avoid the issues, they snowball, expanding to the size of the room until there is no air left to breath. It can be that suffocating. We talk to everyone who will listen (and some who pretend to) except for the person we actually need to have the conversation with.
Discussing finances with your spouse, partner, friend, or family member can be uncomfortable. Think about the time you’ve spent splitting a bill amongst friends at a restaurant. Remember the time you had to mention to your spouse that you used the credit card for that one trip to Lowes? Having the conversation about your budget doesn’t have to be paralyzing or a blame game. Before you have a courageous conversation about your finances, consider:
- Timing & Location. You may feel as though there is never an appropriate or best time to initiate the conversation. The longer you wait, the more time you have to conduct the conversation in your head. You should wait until your emotions are in check so that you bring a clear, conscientious mind to the conversation. Observe whether the other person would be in the right mindset to engage in the “money talk.” In line at the grocery store check-out is probably not the best time to be creating your budget.
- Intentions. Determine why you want to have the conversation. Be specific. Be mindful. Take time to write down and organize your thoughts ahead of time. Focus on the future and disclose what you’d like to see more of – a consistent budget, more collaboration in making financial decisions or more accountability.
- Trust. Being open, honest and calm will create an environment where everyone feels supported and empowered. Be vulnerable, staying mindful when you feel yourself becoming defensive. You will achieve the best outcome when the other participants in the conversation feel as though you are coming together to create a shared solution.
- Facts. Stick to the facts. Math does not lie. Download your bank statements, credit card bills, mortgage statements, retirement statements and any other information relevant to the conversation. With a clear picture of your financial situation, it will be easier to get on the same page and partner for a path forward. With clarity comes focus. With focus comes ease. With ease comes grace.
- Humility. Set aside your ego. This is not about being right. Actively engage with the other person to create a solution to a shared problem. Ask questions to better understand the other person’s perspective and concerns.
With these tools, you are now empowered to initiate that courageous conversation regarding your budget, debt, or need to file a bankruptcy. It will not make the conversation easy, but it will make it easier. Many situations can be resolved or mitigated if you simply start the conversation.
I was confident I would not cry. My sister mildly bragged the week prior that she didn’t shed a tear with her oldest starting kindergarten and her youngest starting preschool. As the older sister, I knew I could match that. Then this happened. I snapped this picture of my daughters on the school steps and seeing my youngest in her new middle school uniform started that familiar form of a lump settling into my throat. This day marked the 10th first day of school for which I have braced myself. From preschool now to 8th grade for my eldest daughter, each year I find myself holding my breath and fighting back tears as I say goodbye during drop off.
First days are fraught with anxiety, excitement, and nerves. Regardless of the number of times my daughters have had a first day of school, the nervous chatter in the car is always the same. “I wonder if there will be any new kids.” “I hope the teachers are nice this year.” “How will I make the changes in classes?” Anticipation for the unknown inevitably leads to worry.
Just like worry, anxiety, and nerves show up in the bellies of our children on the first day of school, so too will they show up for you during the many first days you will have as a divorced parent. There will be the first holiday without your children, the first weekend on your own, the first time they say they want to live with their other parent, and the first day they are not with you when they experience a major milestone like a lost tooth or getting a driver’s license.
Divorce means you are learning an entirely new way of being with your former spouse. You will need to learn new boundaries, new communication methods, and new decision-making patterns. You will look at how to set different expectations for your children and for your parenting. The newness and the unknown may be overwhelming during this time of transition.
When finding yourself facing a “first day that ______,” consider these ABC’s to support you through the moment.
Assess – What is the perspective from which you are viewing your circumstances? Can you call a friend, counselor, your lawyer to help you shed light on a different perspective? One that will make your suffering lighter?
Breathe – When anxiety creeps in, take a deep breath. What is worrying you? What is upsetting you? What small thing can you do to ease some of the angst? Can you take a walk to get some fresh air and a renewed perspective?
Contemplate – What are your present intentions? Despite your heartache, how do you want to show up on this day, in this moment? Do you want to be gentle with yourself? Spacious? Do you want to focus on your intention to be a loving parent and determine how that looks in these newly scheduled days?
These small actions have supported me in times of tough transition. I hope they are helpful to you as you face the first days that will slowly but surely turn into a new normal.
This blog is made available to the reader by Koenig|Dunne for educational purposes only, to provide general information and understanding of the law, and not to provide specific legal advice. By reading this blog, no attorney-client relationship is developed between the law firm and the reader. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state. The content of this blog is not an advertisement for legal services.