Articles Posted in Issues Affecting Families

State legislators in Illinois have passed a new law that sanctions a new, team-based approach to divorces, encouraging a more amicable way to dissolve marriages.

Although divorces, by their nature, tend to be acrimonious, the Illinois Collaborative Process Act aims to create standards that divorce attorneys, as well as financial advisors and mental health professionals, can adopt and present as viable options to divorcing clients.

Chief among those options is a “collaborative divorce,” which has been described by its proponents as a clean, simple, and less-expensive way to end a divorce without ever having to go through a messy and emotionally-draining trial.

Collaborative Divorce Explained

Words like “clean” and “simple” are rarely associated with divorces, but that’s exactly the appeal behind a collaborative divorce.

In a collaborative divorce, the two spouses work with divorce attorneys with the intention of coming to the most amicable resolution to the case. The process also involves the participation of different collaborative professionals, such as neutral financial advisors, mental health professionals, and child specialists, all of whom are committed to supporting the couple and the family address their issues and arrange agreements for both parties to move on and start their lives anew as ex-spouses.

Collaborative Divorces vs. Litigation

Perhaps the biggest advantage of a collaborative divorce over litigation is that litigation usually devolves into blaming, incessant arguing, and trying to make the other side “pay.” In contrast, the collaborative process is about focusing on solutions by finding common ground between both parties.

In litigation, the goal is often to “win” the case by making your soon-to-be ex-spouse look as the bad guy. With a collaborative process, the goal is not to play the blame game and point fingers—it’s finding a solution that works for everyone involved.

When it comes to costs, while a collaborative divorce is usually less costly than a trial, it will still be expensive.

Will a Collaborative Divorce Work for You?

Of course, the question is: Does a collaborative divorce even work?

Short answer? It depends on the couple seeking it. For example, if you and your ex are the type of people who value your relationship and want to remain civil and maybe even continue on as friends after the divorce, then yes, a collaborative divorce might work for you.

But these scenarios are far and few between, especially when so many divorces involve infidelity and pain. But if you and your ex are willing to put aside your differences for the greater good of your family, a collaborative divorce can be a viable option.
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It’s common knowledge that long-term relationships tend to break down around Valentine’s Day, which comes at the midway point between the Christmas holidays and Spring, which in turn, represents the renewal of romance. But when it comes marriage and divorce, does this trend remain present? There was really no way of knowing, until now.

A new study conducted by sociologists from the University of Washington shows that divorces tend to spike during two particular months of the year. According to the researchers, their findings represent the “first quantitative evidence of a seasonal, biannual pattern of filings for divorce.”

According to a report on the University of Washington’s news portal, “The researchers analyzed filings in Washington state between 2001 and 2015 and found that they consistently peaked in March and August, the periods following winter and summer holidays,”

Accidental Discovery:

It’s worth noting this discovery was accidental by nature.

Initially, Julie Brines, an associate sociology professor, and Brian Serafini, a doctoral candidate, set out to study divorce filings within Washington State between 2001 and 2015. The goal was to understand what kind of impact the Great Recession of 2008 and 2009 had on marriages.

Instead, the researchers found a peculiar pattern in divorce filings, realizing that throughout their research timeframe, divorces seemed to spike in March and August.

Why March and August?

Brines and Serafini believe the explanation behind the spike in divorce filings in these months has something to do with lower expectations, that is, couples tend to avoid damaging their relationships out of a “domestic ritual” calendar that affects family behavior.

“People tend to face the holidays with rising expectations, despite what disappointments they might have had in years past,” Brines said.

“They represent periods in the year when there’s the anticipation or the opportunity for a new beginning, a new start, something different, a transition into a new period of life. It’s like an optimism cycle, in a sense,” he adds.

Think of it this way: most couples tend to avoid separating during the months leading to and after the holidays because they don’t want to spoil the family’s mood, or are holding on to the possibility that things may change for the better.

And let’s face it, nobody wants to spoil Thanksgiving and Christmas with news of divorce, and the months after the start of the New Year typically represents hope and fresh beginnings.

But this optimism might fade heading into March. Likewise, during the school break (i.e. June to July), the feeling of facing reality and disillusionment sets in, such that couples begin to weigh divorce once more.
Brines notes that theoretically, divorce filings should spike around February and July, but he attributes the one-month delay to the long process of seeking a divorce attorney.
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Tying the knot after a divorce may not be the first thing on most new divorcees’ minds, but it’s something that happens fairly often. After all, when couples split apart, their priority is to pick up the pieces of their lives and find a way to move forward.

For those who eventually find new love and decide to remarry, one thing these people often do not expect is how complicated the financial and estate planning issues that come with remarriage can be. It’s a problem that has caught many blended families off guard.

If you’re about to remarry or have just remarried, it helps to be aware of the following financial and legal issues you might encounter.

Shared Expenses, Income, and Assets:

If you and your new spouse have shared income and assets, these funds may be at risk if you are still financially tied to your former spouse. You and your new partner may have set up a joint account or two, where you can pool funds to pay for expenses like utilities, groceries, and mortgages—basically, family expenses.

Ask your lawyer about your financial obligations to your former spouse. It may be that you need to keep money separate to protect it from creditors, who are not necessarily bound by divorce settlements. This insulates your shared income from being involved in an old debt of your ex.

Community Property and Common Law Issues:

In a community property state like Texas, the law states that assets brought into the marriage or received individually by one spouse are owned by that spouse. However, any income or assets earned or acquired during the marriage has the presumption that it is the property of both spouses.

In contrast, a common law state requires ownership of assets to be controlled by titles and other ownership documents.

Consult your lawyer to prepare an estate plan that considers your home state, as well as any property that’s out of state.

Safeguards Against Remarriage:

Should your spouse remarry after you pass away, your assets may be at risk of being shared with that new family. Sometimes, what happens when a spouse pre-deceases a new spouse, is that none of the assets owned jointly go to children from a previous marriage. In this situation, the new spouse has the final say over who inherits these assets.

You can set up a Trust, which will ensure your assets are protected and allocated to your desired beneficiaries. A Trust will guarantee that inheritances go straight to your desired loved ones. A Trust can also indicate what happens to your home upon your death, and whether you want to leave it for the benefit of your surviving spouse or children.
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Texas county clerks with “sincerely held” religious objections may now delegate the task of issuing same-sex marriage licenses to other officials. According to state Senator Brian Birdwell, Texas Senate Bill 522 institutes a “statutory balance between the religious liberties of marriage-certifying officials and the rights of all couples to marry,” thereby creating an effective middle ground for the contrasting civil liberties in question.

SB 522 provides that county clerks may lend licensing authority to a “certifying official,” allowing them to produce a marriage license in their place. The bill requires that the concerned county clerk must notify the commissioners court of “sincerely held religious beliefs” that may go against their function and office.

These substitute officials may include an available judge, deputy clerk, or magistrate who is willing and able to certify the marriage license application, administer the oath, as well as the actual issuance of the marriage license.

Likewise, the bill prohibits action against officials who recuse themselves from their functions, stating that, “a civil cause of action may not be brought against the person based on the person’s refusal to conduct the marriage ceremony.” This provision effectively protects officials from administrative and civil penalties for refusing to administer these marriage licenses.

To prevent the possibility of same-sex couples facing additional obstacles after a state official delegates the task of issuing a marriage license, State Sen. Sylvia Garcia (D-Houston), amended the bill: “A commissioners court of a county in which the clerk has made a notification under Subsection (a) shall ensure that all eligible persons applying for a marriage license are given equal access to the process and are not subject to undue burden due to the county clerk’s refusal to certify the application for a marriage license, administer the oath, and issue the license.”

The amendment comes in response to the actions of Texas Attorney General Ken Paxton, who defied the Supreme Court’s decision legalizing same-sex marriage. In an advisory released to county clerks and judges, Paxton suggested that they may refuse to issue same-gender union licenses on the grounds of religious freedom, which in effect, places a burden on gender-deviant couples looking to get married.

The State Bar of Texas has made no disciplinary action on Attorney Paxton in spite of the ethics complaint filed against him by over 200 attorneys.

The seemingly tolerant move was not met with resounding applause from gender equality advocates, however.

Equality Texas, an Austin-based nonprofit supporting equal gender rights, asserts that the bill authorizes employees in public office to discriminate based on religious convictions, ultimately permitting them to cite religion as a basis for further discrimination.

Texas Freedom Network President Kathy Miller believes that the bill not only condones discrimination against same-gender couples but also “against virtually any Texan,” including previously divorced as well as interfaith couples.
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Reversing the previous decision of a lower court, the Texas Supreme Court ruled that under the Texas Occupations Code, licensed family and marriage therapists can diagnose the mental, behavioral, and emotional problems of their clients, provided their assessment falls under their expertise. Among other things, the decision allows family and marriage therapists to provide diagnostic assessments to couples going through a divorce, or spouses with troubled marriages.

Justice Jeffrey S. Boyd delivered the High Court’s decision on February 24, reversing an earlier ruling by the Third District Appeals Court done in favor of the Texas Medical Association.

The decision originates from a 1994 rule passed by the Texas State Board of Examiners of Marriage and Family Therapists, which permitted marriage and family therapists (MFTs) to offer “diagnostic assessment which utilizes the knowledge organized in the Diagnostic and Statistical Manual of Mental Disorders (DSM)…as part of their therapeutic role to help individuals identify their emotional, mental, and behavioral problems when necessary.”

Curated and published by the American Psychiatric Association, the DSM is the universal reference system for diagnosing mental health disorders in the U.S. and in many countries around the world. According to the Therapists Board, the ability to conduct diagnostic analyses through the DSM is at the heart of an MFT’s practice and services.

For example, diagnostic assessments play a crucial role in an MFT’s ability to:

Diagnose a client’s mental health problems
Develop a plan of treatment
Determine suitable treatment services
Provide recommendations to treatments with other health professionals

In 2008, the Medical Association disagreed with the rule and sued the Therapists Board and its directors. In its push for a court to invalidate the rule, the Association argued that allowing MFTs to conduct diagnostic assessments also allowed them to practice medicine without a medical license.

But the Board argued the rule specifically prohibits MFTs to provide medical diagnoses, or any other kind of diagnoses, outside their expertise. Rather, it permits MFTs to diagnose a number of nonmedical mental disorders related to psychological issues and experiences, such as, but not limited to:

Mood disorders
Depression
Anorexia
Bulimia
Anxiety
Behavioral disorders
Personality disorders
Addiction

The Travis County District Court ruled in favor of the Medical Association, invalidating the diagnostic-assessment rule on the grounds of exceeding the scope of the Therapists Act.

The Texas Supreme Court, however, saw otherwise. Justice Boyd considered the arguments raised by the Therapists Board, particularly the claim that the appeals court decision “makes Texas the only state to prohibit Licensed MFTs from performing an integral part of their profession that is essential to their ability to properly treat their clients.”

Boyd also refuted the Medical Association’s claim that the rule allowed MFTs to diagnose all kinds of mental disorders with no limits.
“(T)he rule itself specifically states that MFTs may only make diagnostic assessments ‘as part of their therapeutic role to help individuals identify their emotional, mental, and behavioral problems when necessary.’ Another Therapists Board rule explicitly limits an MFT to services ‘within his or her professional competency,’” the ruling reads.
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Reversing the previous decision of a lower court, the Texas Supreme Court ruled that under the Texas Occupations Code, licensed family and marriage therapists can diagnose the mental, behavioral, and emotional problems of their clients, provided their assessment falls under their expertise. Among other things, the decision allows family and marriage therapists to provide diagnostic assessments to couples going through a divorce, or spouses with troubled marriages.

Justice Jeffrey S. Boyd delivered the High Court’s decision on February 24, reversing an earlier ruling by the Third District Appeals Court done in favor of the Texas Medical Association.

The decision originates from a 1994 rule passed by the Texas State Board of Examiners of Marriage and Family Therapists, which permitted marriage and family therapists (MFTs) to offer “diagnostic assessment which utilizes the knowledge organized in the Diagnostic and Statistical Manual of Mental Disorders (DSM)…as part of their therapeutic role to help individuals identify their emotional, mental, and behavioral problems when necessary.”

Curated and published by the American Psychiatric Association, the DSM is the universal reference system for diagnosing mental health disorders in the U.S. and in many countries around the world. According to the Therapists Board, the ability to conduct diagnostic analyses through the DSM is at the heart of an MFT’s practice and services.

For example, diagnostic assessments play a crucial role in an MFT’s ability to:

Diagnose a client’s mental health problems
Develop a plan of treatment
Determine suitable treatment services
Provide recommendations to treatments with other health professionals

In 2008, the Medical Association disagreed with the rule and sued the Therapists Board and its directors. In its push for a court to invalidate the rule, the Association argued that allowing MFTs to conduct diagnostic assessments also allowed them to practice medicine without a medical license.

But the Board argued the rule specifically prohibits MFTs to provide medical diagnoses, or any other kind of diagnoses, outside their expertise. Rather, it permits MFTs to diagnose a number of nonmedical mental disorders related to psychological issues and experiences, such as, but not limited to:

Mood disorders
Depression
Anorexia
Bulimia
Anxiety
Behavioral disorders
Personality disorders
Addiction

The Travis County District Court ruled in favor of the Medical Association, invalidating the diagnostic-assessment rule on the grounds of exceeding the scope of the Therapists Act.

The Texas Supreme Court, however, saw otherwise. Justice Boyd considered the arguments raised by the Therapists Board, particularly the claim that the appeals court decision “makes Texas the only state to prohibit Licensed MFTs from performing an integral part of their profession that is essential to their ability to properly treat their clients.”

Boyd also refuted the Medical Association’s claim that the rule allowed MFTs to diagnose all kinds of mental disorders with no limits.
“(T)he rule itself specifically states that MFTs may only make diagnostic assessments ‘as part of their therapeutic role to help individuals identify their emotional, mental, and behavioral problems when necessary.’ Another Therapists Board rule explicitly limits an MFT to services ‘within his or her professional competency,’” the ruling reads.
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Divorces are intrinsically very tricky situations. At a time where most, if not all people, rely heavily on electronic data and communications, this added dimension throws in some extra challenges for couples facing divorce, as well as the legal system that adjudicates it. When relationships are made and broken through texts, emails, and social media posts, it’s important to be informed on the many ways you can secure your electronic data.

Secure Your Social Media Activity

Social media only makes it too easy for your soon-to-be-ex-spouse to find information to take against you. Unsightly photos, outspoken status updates, and suspicious online relations – all of these can be found in your online profiles. It takes no effort to document these things before you even have the chance to delete them, but you could never run out of damage reduction and preventative measures.

For Facebook, you can run through your list of friends and weed out those who don’t have your full confidence. You have the option of changing the privacy settings of all your existing and future posts, as well.

For Twitter and Instagram, you may likewise screen your followers list, and set your profile to private. While these are all fantastic ways to keep your privacy online, it’s still best that you exercise prudence and self-control in all your future online activity.

Secure Your Online Accounts

Many couples trust each other enough to share passwords to their email addresses and social media accounts. Whether or not your once-marriage falls under this category, your passwords are nonetheless at risk as there are other means of acquiring them. You may want to change all your passwords, refrain from using the same password across multiple accounts, and reset your password retrieval questions.

Review Your Shared Applications

Man mobile applications like gallery apps, cloud storage accounts, online messengers, and calendars offer syncing services that automatically downloads content into other linked devices. This means that if you and your ex-spouse have any such shared apps, you might want to block their access.

Start Over

If you’ve tried the previous solutions, yet still don’t feel like you’ve got it all covered, you can always start with a clean slate. Do your best to deactivate and delete the accounts that you can (some services don’t allow account deletion though), and make sure you remember to inform your colleagues, clients, and superiors of these changes.

Moreover, you may also want to publicly denounce any future activity from your discontinued accounts. If you suspect that your ex-spouse has access to an email account hosted by your employer, you should contact your IT department for consultation.

Prior to permanently removing or deleting anything, make sure that you comply with all applicable Standing Orders for the particular country your case is pending in. Many counties have what is called a “Standing Order” that attaches when a new divorce case is filed. A standing order are enforceable rules that apply automatically in all cases involving Divorce, Child Custody or Child Support, without the need for hearing, as soon as the case is filed. They are in a sense, automatic injunctions that apply upon filing with the Court.

Get Legal Counsel

There are many illegal ways to acquire electronic information. If you suspect your ex-spouse of engaging in these activities or if you just want to be made aware of any such activities, approach your attorney in consultation. Not only will you be protecting yourself, but by keeping your attorney informed, you may also potentially render evidence against you inadmissible.
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It’s not exactly a secret that Texas Republicans have taken a hard line stance on issues such as bathroom laws, abortion, and Planned Parenthood among many others. Now, the Texas GOP seems to be turning its sights on another social issue —divorce.

Texas State Representative Matt Krause of Fort Worth has filed a state bill aimed at making the divorce process harder for Texas couples, while also helping keep families together. The bill, if passed into law, would eliminate the ‘no-fault’ divorce option, also known as the leading category under which ex-spouses file for divorce in the entire state of Texas.

The emotional and financial strain brought about by a divorce naturally means that it’s a decision couples should never take lightly. However, filing for divorce under the no-fault option allows spouses in Texas and several other states to separate from their partners without the drawn-out process often associated with divorce proceedings. This option allows couples to simply divide their assets and go about their separate ways

But according to Krause, who is married and has a family of six, the prevalence of no-fault divorces has contributed to the breakdown of the family as a unit of society.

“I think people have seen the negative effects of divorce and the breakdown of the family for a long time,” he said. “I think this could go some way in reversing that trend.”

“I think we’ve done a terrible job, sometimes in our own lives and own quarters, of making sure we do what we can to strengthen the family. I think this goes a long way in doing that. I think people have seen the negative effects of divorce and the breakdown of the family for a long time. I think this could go some way in reversing that trend,” Krause adds.

By ending no-fault divorces, Krause believes that couples would think twice about separating. It would also help to protect spouses who do not want to end the marriage.

The bill is up for the consideration of Texas lawmakers in January, often called by divorce lawyers as “divorce month” due to an uptick of divorce inquiries and filings after the holidays.

Krause has also filed another bill that would extend the waiting period for divorces from 60 to 180 days. But critics point out that this will only make the divorce process more expensive and discourage spouses in abusive relationships to split from their partners.
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Engaged couples often find themselves too busy planning the wedding that they sometimes forget to straighten out some legal documents first. One of the most important things to update is your estate plan – especially if your upcoming marriage isn’t your first, or you have children from a previous marriage.

  • If you are planning to remarry, you must update your estate plan to ensure your interests are protected
  • Be sure to update your will, titles and beneficiaries so that your assets go to the right people
  • You must also revise your power of attorney so that your ex-spouse will not be able to petition a court for guardianship

Walking Down the Aisle… Again

Statistical data shows that many Americans have made a second or third trip down the aisle. According to a 2013 report by the Pew Research, around 40% of marriages are a remarriage after divorce for one or both partners.

While it’s common nowadays to be married to someone who has been married once or twice before, it’s even more common to have lackluster estate planning. According to a recent survey by USLegalWills.com, an estimated 63% of Americans don’t have a will, and around 9% have wills that are outdated.

The combination of remarriage and out-of-date estate planning can be very problematic for your kids and new spouse, so here are a couple of things to do to ensure your interests are protected.

1. Create/Update Your Will

First, you have to maintain your will. If you don’t have one, now is the time to get one. Without a will, your assets will be passed in accordance with state intestacy laws, which might not be how you want to distribute them. Your stepchildren could be cut out entirely, for example, and this might not be what you want to happen.

2. Revise Your Power of Attorney

Second, revise your power of attorney and your healthcare directives. It’s important to do this; otherwise you could end up having your ex-spouse as your agent. In addition, make sure the power of attorney lists exactly who you want as guardian. If you don’t, your ex-spouse may be able to successfully petition a court for guardianship, even if she or he is not the listed agent on the power of attorney.

3. Make Sure Your Beneficiaries are Up-to-date

Third, update your beneficiaries. Qualified retirement plans and life insurance plans are often passed to the beneficiary listed on your accounts, regardless of what is written in your will. If you don’t update your accounts, your ex-spouse might get the proceeds from your life insurance plan, instead of your new spouse or kids.

4. Update Your Titles

Lastly, you have to watch your titles. When it comes to titling in property division, the will doesn’t matter. Assets titled as joint tenancy with rights of survivorship, community property with rights of survivorship, or tenancy by entirety will be automatically passed to the surviving owner. So make sure that you review existing titled assets to make sure ties with your ex-spouse are severed.

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If you are looking for reasons not to get married, then here’s one from the Internal Revenue Service (IRS). Thanks to a recent evaluation of an existing ruling, unmarried couples can now effectively deduct twice as much of their mortgage and home debt than married couples.

A Tax Break for Couple Who Haven’t Tied the Knot

A year ago, a lawsuit filed by domestic partners Bruce Voss and Charles Sophy in California challenged the IRS’s mortgage-deduction rules. Voss and Sophy owned two properties together, and were about $2.7 million in debt on their houses and were paying a combined interest of about $180,000 every year.

The current tax code allows taxpayers to receive a reduction in mortgage debt for up to $1 million, and up to $100,000 in home equity financing. But when Voss and Sophy each tried to deduct their debt, the IRS said the $1.1 million limit had to be applied on a per-residence basis.

Voss and Sophy sued, but the tax court decided to side with the IRS. The couple appealed to U.S. Court of Appeals for the Ninth Circuit, and the Court of Appeals overturned the ruling, claiming that a closer reading of the tax code entitled the men to separate deductions. In other words, the unmarried Voss and Sophy were each entitled to receive a $1.1 million deduction limit.

Bigger Tax Deductions for Unmarried Couples

The ruling no longer applies to just Voss, Sophy, and other taxpayers under Ninth Circuit jurisdiction. This month, the IRS made the ruling applicable to all taxpayers nationwide.

This ruling could potentially pose a dilemma to couples who are planning to be married, because getting married enforces the implementation of the $1.1 million limit to deductions in mortgage and home debt. But if you decide not to marry your partner, you can deduct up to $2.2 million in mortgage and home debt.

The ruling also applies if you want to purchase property with a friend or family member. It is worth noting, however, that purchasing a home with a friend, loved one, or unmarried partner is risky if you eventually break up or fight.

“When you’re an unmarried couple, you don’t have protections,” said lawyer and Marcum partner Janis Cowhey. “As far as the law is concerned, you’re legal strangers.”

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