Divorce|Heiman Law Firm

When to Consider Divorce (Part 3)

Jan 21, 2023 | Divorce, Family Law

Previously, we have discussed the benefits of a happy marriage, as well as warning signs in this article; and, the types of marriages that might be saved, and are worth fighting for, in this post following-up the first one. Today, we will discuss different types of commitments to a marriage, and which is required for a marriage to be happy and thrive (and so, for divorce to not need to be considered).

In traditional, ceremonial, marriages, the individuals to be married make vows to one another. They, typically, will publicly attest to their mutual love, devotion, and expressed intention to work towards a lifelong, supportive relationship. That commitment is usually “for better, or for worse, for richer or poorer, in sickness and in health; to love and to cherish, till death do us part.” And yet, despite those vows, many once-married people find themselves divorcing or divorced. Why is that?

Notice that the vows cited above do not express how the couple will stay together through troubling times. There is no mention of what actions they will take when warning signs (discussed in the articles linked above) present themselves. Divorce should not be considered, at least not initially, in a non-abusive relationship, where the partners are appropriately committed. So, that raises the issue: what type of commitment is “appropriate?”

According to Benjamin Karney, a professor of psychology and co-director of the Relationship Institute at UCLA, “’(w)hen people say, ‘I’m committed to my relationship,’ they can mean two things. One thing they can mean is, ‘I really like this relationship and want it to continue.’ However, true commitment to the marriage is more than just that.”[1] In a new study, UCLA psychologists based their analysis of 172 married couples over the first 11 years of marriage. What they found was that couples who did more than just commit to wanting their relationship to continue; who were actually willing to examine how they might change themselves, compromise on their wishes and preferences, and prioritize the welfare of their marriage, over their individual desires, were significantly less likely to divorce, than were those couples who did not commit at that level.[2]

That makes sense when applied to other contexts. Let’s take parenting for an example. There are times when a parent prefers not to get-up with a sick child at night; prepare a healthy meal, wash clothes, arrange parties or outings for a child. They may even reside in a location where it is better for a child (such as in the attendance zone of a good school, or within an area designated by a court for the child to reside) rather than where they would ideally live (on a mountain, at a beach, in another state, or in a downtown condo, for examples) But, most parents will do those things anyway, because they prioritize the welfare and happiness of their child over their own individual wants, desires, and preferences.

It’s easy to want to have a good relationship, with a thriving, healthy child. It’s the parents’ commitment to sacrifice for the child’s welfare that is truly important to achieving those outcomes. Should spouses treat the welfare of their marriage with less commitment? If the answer to that question is “no,” then divorce should not be considered in that circumstance. If the answer is “yes,” then that spouse should consider whether s/he wishes to truly be married, or whether being single is the preference.

Healthy marriages bring much value to spouses, including a longer life expectancy, more general happiness, and life satisfaction. But like most things worthwhile, they take work, commitment, and sacrifice. But, the process of making them successful improves our own attitudes towards life, and ourselves as people and partners.

[1] https://newsroom.ucla.edu/releases/here-is-what-real-commitment-to-228064

[2] Ibid.

Is There an Ideal Time to File for Divorce?

Oct 20, 2022 | Divorce

One of the more common questions that we receive concerns when to file for divorce (another one is “(d)oes it matter who files first). There are several factors that go into figuring the timing. For one thing, is divorce an appropriate response to your current situation? Some considerations to think about can be found here and here.

Assuming that you have fully considered your decision, as discussed in the links above, and you wish to proceed with divorce, the next consideration is whether you have taken the steps necessary to be prepared for divorce. A discussion of those steps can be found here.

Ok, now that you have given thought to whether divorce is right for you; and if you are ready for divorce; then the issue of ”when to file” arises. January is the most popular month for filing for divorce. In fact, it is commonly referred to in the industry as “Divorce Month.” February is, typically, the second most popular month for new divorce case filings.[1] But, does it truly matter in which month a new divorce case is started?

As far as the law governing the divorce case, and the manner in which the proceedings will go, the answer is “no.” Filing in either Spring, Summer, Fall, or Winter, will not change your case. So, the answer as to when to file is that you should file if and when you are ready to file.

Have you made the plans discussed in the links above for how things will go during your case? Also, will the two of you continue to reside together, or will one of you move out of the home? Have you considered finances and debt payments? Is now a particularly dicey time for one or more of your children? Is it a particularly stressful time at your work? Is there a preplanned family vacation on the horizon? All of these considerations, as well as the others discussed within those other blog posts, amount to determining whether you would be happier staying together, at least for now, or beginning the process of legally dissolving your marriage.

It is not an easy decision for many folks. As for others, they emotionally checked-out of the marriage in the past, and so, it is merely a business decision for them. Wherever you are in that process of emotionally coming to grips with the loss of your marriage, our advice is for you to not make a rash decision. Think about what you want to do. Discuss it with friends, or a mental health worker. And, if you decide that divorce is right for you; and that you are ready to proceed, then make that decision. Until then, wait until you are ready (or, ideally, work to improve your marriage, and never get divorced).

Until nest time, I am the Family Lawyer who says “Divorce is a big decision. Please don’t rush into it!”

[1] There are a few reasons for this phenomenon. Many people do not want to start the divisive process during the holiday season. The stress of the holiday season pushes other to realize how unhappy they actually are. And, January is often viewed as a time for new resolutions, and major life changes.

Some Common Causes of Divorce (Part 1)

Aug 21, 2022 | Divorce

In my practice of law since 1989, my firm has handled many divorce cases, and have spoken with various mental health experts. Between our experience, as a law firm handling divorce cases, as well as what we have discovered from our study of the subject with relationship experts, we have learned some common causes of divorce. Based on those experiences, we offer the following observations.

Once upon a time, divorce was rare and frowned-upon by American society. During the Twentieth Century, however, several societal changes occurred, which caused the divorce rate to spike. It became one of the highest in the world.[i] Among these changes were women’s ability to support themselves financially; an increased mobility of society, where the members of extended families lived apart from one another; and, the dawning of the Sexual Revolution, which led to a change of view about previously-married people (especially women).

One of the most important factors, though, was the shift in view of marriage from being a lifetime family obligation that one takes, to being a source of personal fulfillment and joy. With this shift in view, a marriage which did not bring such pleasant emotions became considered as not worthy of protecting and extending.[ii]Various stress factors can lead to that lack of fulfillment and lack of joy. We will begin exploring two (2) of those today. Later posts will discuss this topic further.

Research into the area by multiple studies shows, unsurprisingly, that frequent conflict leads to a breakdown in the marital relationship. Each argument, or harsh word uttered, pushes the parties apart, eventually leading to a devaluing of one’s partner, and the marriage itself, unless appropriate intimacy-building measures are taken. There are resources for doing this available on the web. But, when there is already negative energy within a marriage relationship, working with a good therapist or counselor can be invaluable.[iii]

Another common cause of divorce is a lack of commitment; or often more appropriately, a lack of sufficient commitment, of the right type, from each spouse. Let me explain. There are some marriages in which both spouses are committed to the marriage, but each to a different degree (“Asymmetrical Commitment.”). This is unhealthy, and can cause deterioration of the marriage, as one spouse begins to feel devalued by the other.

In addition to needing a similarly strong commitment to the marriage, the right type of commitment is also important. A commitment to the marriage for moral reasons, such as for religious reasons; but, without a personal commitment to the marriage, is unlikely to result in a healthy relationship. The same is true when there is a structural commitment to stay in the marriage “for the kids,’ or for financial reasons. A personal commitment to stay in the marriage, because it is the most important thing in your life, however, is the type of commitment that leads to healthy, happy marriages. Spouses having this type of commitment stay in their marriage, because they want to do so; not because they feel like they should do so, or must do so.

Today, we have begun our study of the common causes of divorce. I hope that this has been helpful. More will follow, so please follow this site for updates. Until next time, I am the lawyer who says “I hope that you never have need to use our divorce services.”

[i] Wu Z. Schimmele C. M. 2007 Uncoupling in late life Generations 31 41–46

[ii] Ibid.

[iii] It is important that each spouse bring to the counseling, a commitment to working on oneself to improve the relationship. Merely showing-up to complain about the other spouse is very unlikely to be successful. Even if one spouse is primarily responsible for the breakdown of the marriage, each partner can improve as a spouse; even if that means simply not enabling the other spouse.

How to Expedite Your Divorce Case (Part 1)

May 21, 2022 | Divorce, Family Law

All marriages have their ups and downs. A “down” period, by itself, is usually not reason to abandon a healthy marriage. But, of course, not all marriages are “healthy.” If you are unhappy in a marriage, visiting with a good therapist may be the first step in trying to figure-out where you are, and where you wish to go. Here are some things to think about, and perhaps to discuss with your therapist: When to consider Divorce, Part 1; When to Consider Divorce, Part 2; and, When to Consider Divorce, Part 3.

Assuming that you have considered your options, and decided that divorce is right for you, then there are things that can be done to expedite your divorce. First, you should consider how you want issues resolved. If you have minor children of the marriage, then these are issues to be decided such as child custody, child support, child possession, and the authority to make important decisions for the children, such as where they will go to school, and which classes they will take, Also, who will choose which extracurricular activities they will participate in; how will those be paid for? Who will be responsible for transporting the children to and from practices and other events, such as games or recitals? Another important issue is who gets to make invasive medical decisions in a non-emergency[1]; and, where their primary residence will be located (either within a restricted geographic area or not). Each or all of those decisions might be set-up to require the joint agreement of both parent; or, one parent may get to make that decision unilaterally.

There is quite a bit to discuss in these areas. To what extent do you believe that you are your spouse will be able to discuss and resolve some or all of these issues? Your divorce case will go quicker, and be easier (financially and emotionally) to the extent that the two of you can make agreements without the need for litigation and judicial intervention.[2]

There are usually, also property issues to be determined by either the agreement of the parties, or by court decision. Which assets and liabilities exist? Which of those do you want for yourself, and which do you wish for your spouse to take? To what extent is there agreement or disagreement about those issues? Were some assets and/or debts acquired: prior to marriage? by inheritance? by gift? Those items are Separate Property, and will be treated differently than all other property, which is Community Property,.

Importantly, assets are viewed by courts in terms of their net value, as well as their affordability. Net worth is, of course, the value of the asset less anyt debt associated with it. In terms of affordability, awarding a spouse an asset which s/he cannot afford to maintain is not a benefit to that spouse, unless s/he intends to sell it right away. So, e.g., a court is unlikely to award house, even with a high net equit6,y to a spouse who cannot afford the mortgage, insurance, taxes, and upkeep on it. In that case, the spouse in question would likely be better off by taking an award of cash (or another asset) for some or all of the net equity in the house, and allowing the other spouse to have the house and its payments.

I hope that this has given you some things to think about. There are plenty of other blog posts about divorce, child custody, and property, on this site. Please feel free to search for them.

[1] Usually, either parent can consent to invasive medical procedures in the case of an emergency.

[2] Discussion is not always recommended, such as when there is abuse (of any kind, including verbal). So, please, use your common sense, and trust your gut instinct, about whether to attempt to discuss divorce issues with your spouse,

What Are The Steps To Take After Deciding To Divorce? (Part 2)

Jan 22, 2022 | Divorce, Family Law

In the last post, we discussed the initial four steps to take after deciding to divorce. That article is here. Being familiar with those actions, will help put these next steps into context. As we stated there, ideally you would work through all of these steps before a divorce is initiated by either spouse. Your head will be clearer then, and you will be able to think without the stress of a pending divorce hanging over your head.

Step 5 – Secure Your Information. The first obvious step in this regard is to change your mailing address; but not for your spouse’s mail. And, advise people whom you expect might write to you, to use your new mailing address (which might be a post office box). Storing copies of important documents electronically, in the cloud, is a good way to be able to access them. But, it’s only good if you, and only you, can access them. So, new accounts and passwords are a must.

Step 6- Secure social Media accounts; and don’t post anything negative about your spouse there. It might surprise you just how often social media plays a role in contemporary divorce cases. Keep your spouse out of your social media. But, don’t assume that anything that you post will not, somehow, finds its way into your spouse’s possession. We want to be seen as “the reasonable one,” so for God’s sake, don’t post negative material, nor hack into your spouse’s social media, email, or anything!

Step 7- Get copies (electronic ones, preferably) of important child-related documents. Records of children’s academics, healthcare, extra-curricular activities, and so on, provide abundant information that may be useful in a contested, child-related, case.

Step 8- Record (in written form) all important events, summaries of conversation, issues to discuss with your lawyer, and anything else important to your case. Divorce cases can come quickly, with a flurry of events and discussions happening in a surprisingly short period of time. But, they also, can last for a long time. The point is that there can be a heavy volume of important facts and issues that we do not want to rely upon our memories for. A journal is a good way to record, and keep track of, all of this data. That way, when the time is right, it can yield information, knowledge, and wisdom. But, it all starts with an accurate accounting of the data. Keep your journal private and secured. That way, if you and your attorney decide that it is best to keep it confidential, then your attorney will have a solid case that it is an attorney-client privileged communication. But, if you share its contents with anyone other than your legal counsel (including legal Assistants, Paralegals, and other staff), then you will have waived that privilege. So, don’t do that, please.

Divorce case can be complex, and feel overwhelming. Preparation for it can make it significantly easier for you. This might give you an advantage over an unprepared spouse. That makes it easier to obtain a favorable case outcome. And, that is our goal, right?

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When is Annulment an Option?

Jan 21, 2022 | Divorce, Family Law

Today, we will discuss annulment, as a possible alternative to divorce. We will discuss what it is, how it differs from divorce, and when it is available. Also, at the end of this post, we will direct you to other posts about when to consider either option.

Annulments are judgments of a court that declare that a purported marriage was never valid. In contrast, divorces are judgments of a court that dissolve a valid marriage. While there is no existing marriage once either of those judgments is entered there are significant practical differences between the two procedures.

For example, in the case of a marriage ending after a prior divorce, the availability of Social Security benefits based on the earnings of the prior spouse may be affected by whether the second marriage is dissolved (i.e., through a divorce) or found to have never been valid (i.e., though an annulment).[1] Depending on the state in which the legal proceeding occurs, eligibility for alimony or spousal support may, also, be affected.[2] The same may, also, be true about property rights. So, be sure to check on those matters with a Family Lawyer in the state of your residence.

There are also differences other than those practical ones. If your purported “marriage” is annulled, then you can honestly say that you were not married. Sometimes, that provides relief to people who do not want to announce a failed marriage (perhaps, it is not their first one, and they do not like to declare that they have had another marriage fail). Also, historically, certain traditional religions did not acknowledge divorces, and so, they likewise did not acknowledge subsequent marriages. But, with an annulment, the problem of the first relationship can be avoided, since there was never a true marriage.

So, when are annulments available? Not surprisingly, eligibility for, and time limits for requesting, an annulment, vary significantly from state to state.[3] The most common ground for annulment is fraud. For example, under Texas law, annulment may be granted to a party if “the other party used fraud, duress, or force to induce the petitioner to enter into the marriage; and the petitioner (that is, the party requesting the annulment) has not voluntarily cohabited with the other party since learning of the fraud or since being released from the duress or force.”[4]

Other grounds, depending on your particular state’s laws, may include (as Texas does) that annulment may be granted for certain underage marriages.[5] Interestingly, it may, also be granted if “(1) at the time of the marriage the petitioner was under the influence of alcoholic beverages or narcotics and as a result did not have the capacity to consent to the marriage; and

(2) the petitioner has not voluntarily cohabited with the other party to the marriage since the effects of the alcoholic beverages or narcotics ended.”[6]

Other possible grounds for annulment may include things such as a concealed divorce, impotency, mental illness, and a marriage that occurs too soon after the marriage license is granted (contrary to a mandatory waiting period). Again, these vary from state-to-state, so please consult with a local attorney for information about your particular state’s laws.

A discussion of all of the effects and consequences of annulment versus divorce is beyond the scope of this post. I hope that it has been a primer for you on the subject. We would welcome any comments that you may have about this post.

For further information about when to consider divorce or annulment, please see this post.

To see which steps to take, if you are ready to begin the legal process to terminate the marriage, please see this post and this one

[1] Contact a Social Security Lawyer to discuss how and when Social Security Handbook Section 1853 applies. We do not practice in this area of law, and so, cannot and do not, provide any advice about Social Security benefits nor eligibility.

[2] Check with a Family Lawyer licensed in the state where you reside to learn the legal effect in your particular state.

[3] So, again, check with a local lawyer about this.

[4] See Texas Family Code §6.107

[5] See TFC §§6.102,3,4.

[6] Ibid @ §6.105.

When to Consider Divorce (Part 3)

Is There an Ideal Time to File for Divorce?

Some Common Causes of Divorce (Part 1)

How to Expedite Your Divorce Case (Part 1)

What Are The Steps To Take After Deciding To Divorce? (Part 2)

When is Annulment an Option?

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