Tuesday, March 24, 2009

Festivous for the rest of us - Holiday parenting time.

There is a hilarious Sienfeld episode where a character introduces a new holiday (for those that do not celebrate Christmas) during the christmas season " 'festivous', a holiday for the rest of us. "

When addressing parenting time, holiday parenting time is often not a laughing matter. Typically both parents want to spend time with family during the holiday season. In many circumstances, the parties cannot agree.

Two trends have developed in dividing holiday parenting time:

The first trend is "alternate the holiday." This allows each parent to exercise the entire holiday during a year. Using Christmas break as an example, in odd years the father would exercise parenting time during the entire break and in even years the mother would exercise parenting time during Christmas break.

The second trend is "sharing the holiday." This allows each parent to share the holiday. Once again, using Christmas break as an example, in odd years the father would exercise parenting time during Christmas break. The parenting time would begin on the last day of school and continue uninterrupted through Christmas day @ 10:00 a.m.. The mother would exercise parenting time from 10:00 a.m. Christmas day until the end of school recess.

All to often lawyers include language similar to "the parties shall share the holidays." This lack of attention to detail may result in unneccesary litigation if the parties no longer agree. What does "share the holidays" mean anyway? This can easily be avoided by simply adding the phrase: "unless otherwise agreed by the parties, holiday parenting time shall be as follows:", followed by a specific default holiday parenting schedule.

What about Festivous? (or labor day? or your birthday? etc.)

Attention to detail in the holiday parenting time Order can lead to emotional and financial savings in the future.



As an aside, I have added a link to my practice groups core values: Who are we? How do we live? What do we promise? Visit: http://thedivorceguy.com/commitment.html.

Monday, March 16, 2009

What should I do? Some advice to clients and lawyers

Whenever someone is contemplating divorce, I remind them that they have three choices.

1. Get divorced;
2. Go to counselling;
3. Do nothing.

Expierence has taught me that all three decisions are good decisions even in lousy relationships. When struggling with a relationship, you should consider every choice. You should rely on a matirmonial attorney for the first choice and your friends/therapist for the remaining choices.

As a matrimonial attorney I know my limits. I am not a therapist. I take pride in separating my feelings from the case. I always advise a client on what I think they should do while never being afraid to do what my clients ask me to do.

Too often lawyers cannot separate their feelings with their client's. These lawyers try to act as attorneys and therapists. The attorney typically has an emotional attachment to their client's cause.

My advice, if you are an attorney don't be your client's therapist. If you are a client, stay away from an attorney that gives you emotional advice.

While a good friend or therapist is important while struggling with your marriage, your attorney should never be your thearpist. Doing so will typically work to your detriment and increase the cost of the case substantially.


Monday, March 9, 2009

No Fault Divorce? - Just say know!

Michigan is a "no fault" state right? Well, right and wrong. While a Court cannot take fault into consideration when granting a divorce, the Court can take fault into consideration when dividing property, awarding spousal support or deciding custody.

Many clients and even some lawyers think that because Michigan is a no-fault state a person’s conduct before, during or after filing for divorce is irrelevant. It is not.

I always advise my client not to engage in extra-marital contacts during the divorce process. Not only does it complicate the emotional aspect of a case, it may have legal ramifications as well.

Understanding human nature, if someone is going to engage in extra-marital contacts, or otherwise engage in an activity that may be considered the basis of the breakdown of the marital relationship just say no. If that is not possible, know the consequences and use discretion.


The Divorce Guy

Monday, March 2, 2009

My home is gone, welcome the tax?, (taxes on debt cancellation)

Under IRS regulations, if you owe a debt to someone and they cancel the debt, the cancelled debt may be taxable. This was especially frustrating to homeowners who let their house go into foreclosure only to get a 1099 for the money written off from the bank.

In 2007, Congress passed the Mortgage debt relief act of 2007. This act generally allows taxpayers to exclude income from the discharge of a debt from their primary residence (up to $2,000,000.00 - See IRS Publication 4681).

In short, if you default on your primary residence, the cancelled debt is no longer taxable. However, cancelled debt on investment property, and other debts can be unless you file for bankruptcy.

In a divorce proceeding, you need to rely on specialists to help you plan for unforeseen contingencies. Visit: http://www.thedivorceguy.com/ for more information.