domestic violence

Abuse isn’t limited to acts of physical battery and domestic violence. It can be emotional or psychological, too. The methods used by an abuser can be very subtle or extremely direct. Abusers can be male, female and even children.

When a divorce involves the ending of a marriage in which abuse is a facet of the family dynamics, divorce lawyers and judges have difficulty in knowing just how to deal with it, unless it is physical abuse or the threat of physical abuse that puts a spouse or child in immediate danger or fear of harm. There is legal authority for how they must deal with domestic violence, physical abuse, harassment or stalking that puts a person in fear of his or her safety.

Their difficulty arises, not from a failure to acknowledge and appreciate that an act of emotional or psychological abuse or an isolated act of physical abuse has occurred, but from several other factors. First and foremost is that divorce lawyers and family court judges must build a protective shell around their emotions and mind to enable them to do their jobs. Without the shell, they are too emotionally involved and their logical thought processes are hindered. They have to be very pragmatic and realistic about what effect, if any, the abuse might have on the final outcome of a divorce. The shell is also necessary for the lawyers and judges to maintain their own mental health.Continue reading

marital misconduct, domestic abuse

Even though your state may be a no-fault divorce state, it doesn’t mean that you or your spouse won’t have to answer in some way for any misbehavior during the marriage. It’s what divorce lawyers and courts refer to as marital misconduct and, in certain states, can effect the outcome of the division of property, an award of spousal support, or an award of attorney’s fees for the victim-spouse.

The legal definition of marital misconduct is any conduct that undermines the marital relationship. It becomes a factor in a divorce when the offender-spouse’s behavior forces the victim-spouse to assume extra burdens in the marriage. It isn’t meant to punish the offender-spouse or award him or her an inadequate amount of property or income, but to fairly compensate the victim-spouse.

The rationale behind this theory is that the victim-spouse is compelled to contribute more to the marriage because of the offender-spouse’s misconduct, therefore he or she is entitled to have the offender-spouse’s behavior taken into consideration when property or income are divided. Marital misconduct can be disregarded if both spouses are guilty of marital misconduct. In some states, marital misconduct is specifically disregarded as a matter of law.

In those states where misconduct is a factor, there are several broad categories of behavior that might be classified as marital misconduct. They are:

    • habitual drunkenness or addiction,
    • adultery,
    • domestic violence,
    • cruel and abusive behavior, or
    • economic fault.

Once the offender-spouse’s behavior has reached the level of marital misconduct, it is the court’s responsibility to determine just how much weight to give to it in each specific situation. Some of the considerations the court looks at when deciding this issue are:

    • the length of the marriage,
    • the character of the misconduct,
    • the time period during the marriage when the misconduct occurred, and
    • the frequency of the conduct and whether it was continual.

Certain types of marital misconduct may have more of an impact upon a court’s decision-making than others. For example, cruelty or domestic violence might not be a relevant or appropriate consideration for making an equitable division of property because this type of misbehavior typically isn’t relevant to the acquisition of marital property. The same cannot be said for economic fault, adultery or an addiction, all of which can directly influence a couple’s property.

There are several types of economic fault. They are:

    • dissipation of assets,
    • hiding assets,
    • diverting marital or community income to pay for an addiction,
    • spending marital or community income on an extramarital relationship,
    • excessive or abnormal spending,
    • destruction of property,
    • the fraudulent sale or conveyance of property, and
    • any other unfair conduct that prevents the court from making an equitable division of property.

Some divorcing spouses believe that once they are separated and a divorce filed that marital misconduct, especially adultery or economic fault, has no effect on the outcome in a divorce. That isn’t actually the case. Each divorce is very fact specific and the same logic about the impact of marital misconduct on the division of property applies whether it occurred prior to the separation or during the pendency of a divorce. This is particularly true for economic misconduct.

There are some states that have statutes that specifically permit a court to award a disproportionate or lesser share of property to an offender-spouse, particularly if the misconduct can be classified as economic. The facts of each particular divorce play a heavy role in how the court applies the law.

In cases that involve the dissipation, hiding or destruction of assets, the excessive or abnormal spending of income, or the fraudulent conveyance of assets the court can’t increase the size of the marital or community estate that actually exists. However, it can order a disparate division of the existing and known property to reimburse the victim-spouse for his or her loss in the couple’s estate.

In addition to having a possible effect on the division of property, marital misconduct may also have an effect on the amount of spousal support an ex-spouse may receive provided he or she qualifies for such support. This can work both ways. If the spouse who may be entitled to receive support is guilty of the misconduct, his or her receipt of support may be in jeopardy depending upon the nature and level of the misconduct. On the other hand, a paying spouse might have to pay more, especially if his or her behavior caused the victim-spouse to give up or reduce the ability to earn income.

The following states take marital fault into consideration when determining an award of spousal support: Alabama, Arizona, Connecticut, District of Columbia, Florida, Georgia, Idaho, Louisiana, Maryland, Massachusetts, Michigan, Mississippi, Missouri, Nevada, New Hampshire, New Jersey, New York, North Dakota, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, West Virginia and Wyoming. (Source: American Bar Association, Family Law Quarterly, Winter 1998, Tables Summarizing the Law in Fifty States)

The following states take marital misconduct, especially economic fault, into consideration when dividing marital or community property or in reimbursing the marital or community estate: Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Indiana, Kansas, Kentucky, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, Nevada, New Hampshire, New Jersey, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, West Virginia and Wisconsin. (Source: American Bar Association, Family Law Quarterly, Winter 1998, Tables Summarizing the Law in Fifty States).

Judge holding gavel in courtroom

According to a legal dictionary, a tort is a private or civil wrong or injury that results “from a breach of a legal duty that exists by society’s expectations regarding interpersonal conduct, rather than by a contract or other private relationship.”

Every lawsuit has something called elements that must be present to sustain a cause of action. In a tort action, the following elements must be present:

  • there must be a legal duty owed by a defendant to a plaintiff, and

  • breach of that duty, and

  • a causal relation between the defendant’s conduct and the resulting damage to the plaintiff.

A marital tort comes from incidents or behaviors that occurred between spouses, and sometimes third parties, during the marriage, even during the pendency of a divorce suit and possibly afterward in certain circumstances.

Some examples of a suit that could be brought as a marital tort action are:

  • assault and battery

  • rape

  • spoliation of evidence, negligent and/or intentional

  • infliction of emotional distress, negligent and/or intentional

  • transmission of a venereal disease

  • interference with custody

  • harassment

  • fraud

  • invasion of privacy, wiretap

  • false imprisonment

  • conversion

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This chapter from Divorce Strategy was excerpted in all of the Fall 1998 U.S. editions of Divorce Magazine. The article is titled Charting Your Expenses in the Money Matters section.

How Much Does It All Cost?

Your cost to maintain an established lifestyle consists of all the expenses you pay from all your income sources, including loans. In a divorce you will hear the phrases “maintain a lifestyle to which your family is accustomed” and “reasonable needs”. There is an inherent conflict between the concepts of lifestyle and reasonable needs. The cost to meet the reasonable needs of your family may be much different than the cost of your lifestyle.

Webster’s Dictionary defines lifestyle as the “consistent, integrated way of life of an individual as typified by his manner, attitudes, possessions, etc.”. Reasonable needs are those things necessary to sustain a family with the basic requirements. The qualifier “reasonable” adds the limitations of not excessive, extreme or immoderate. Your family’s lifestyle and reasonable needs are the twocomponents of expenses that play a part in a divorce.

The difference in the definitions between “reasonable needs” and “lifestyle” becomes painfully obvious when a divorce court sets an amount of money for child support or spousal support. Quite often, the support amounts do not satisfy either spouse’s expenses to maintain previous lifestyles or the family’s current reasonable needs. This may lead to each ex-spouse being angry or bitter. These feelings are a result of each spouse believing that he or she is either paying too much or not receiving enough money for support. In reality, both spouses have to make adjustments in how they each pay for their needs and maintain their lifestyle.

Historical and Current Expenses

Your first step to determine the cost for your family’s lifestyle is to gather documents showing how your family has spent all the family money over a period of time. Several years worth of records are optimum, but records beginning one year prior to any separation may suffice. Some of the records you need are: bank account registers, canceled checks, paid bills, credit card statements, loan papers and cash receipts.

Software for financial record keeping is very helpful if you have a computer. A manual system takes longer to put together, but can be just as effective. For the manual system you need a 14 columnar pad, an adding machine or calculator, a good eraser and pencils. Use the worksheets at the end of this chapter as guidelines for setting up your own worksheets on separate sheets of paper.

To keep better track of expenses, change some of your spending habits. Start paying for as many expenses as possible with a credit card or check. Keep a daily log of any cash purchases. If you use a debit card to buy groceries and get cash back, note the amount of cash you received. Also, be sure you do not include the cash you received as a part of your food expense. Enter your current daily expenses under the proper categories into your daily or weekly worksheets. At the end of a month, add up all of your weekly expenses by category to get a monthly total for each category. Write that number in the proper space for each category expense for the month listed in your annual worksheet.

Continue keeping track of your daily and monthly expenses, transferring your monthly totals into a yearly worksheet listing your categories of expenses paid in that month. Total each month’s expenses and total each category for all the months you have entered data. Add all the month’s totals and divide by the number of months to get an average monthly total for each expense.

Organizing Your Records

Another example is credit card charges made to a child’s clothing store. This is a clothing expense and the children benefit from the purchase. List the expense under the clothing category for the children. The next step is to review each canceled check, paid bill or receipt and credit card statement to categorize all the transactions. At the same time you are categorizing the expense, record it into your system. Use the model worksheets on pages 165, 166, 168 and 169 to set up your recording system. Examples of some category listings are on pages 167 and 170.

Enter the expenses that you pay annually in the month you make the payment. Examples of these expenses are real estate taxes or insurance premiums. If you do not pay all your credit card bills in full every month, make a notation of the full amount of the bill and the amount you paid. Be sure to make an adjustment deducting the amount you carried over from the previous month when you make an entry in the following month. You want to list only the unpaid balance for the new charges each month to avoid a double entry for any balance carried over from a prior month or billing cycle. In some instances, the payment you make on the balance owed may be a monthly expense. Do not forget categories for interest, penalties and late fees.

Direct and Indirect Expenses

Once you have your family’s expenses listed and categorized, allocate them further into direct and indirect expenses. Direct expenses are the expenses incurred specifically for a particular family member. Indirect expenses are the costs for housing and other types of expenses necessary to maintain your family’s lifestyle. Examples of direct expenses are: tuition for a child to attend a private school, college tuition and room and board, clothing, medical expenses or music lessons. Some indirect expenses are: rent, mortgage payment, utility bills, automobile loan payment or insurance. In some cases, a payment of automobile insurance can be a direct expense if it is paid for a teenager to drive a car. Once you have compiled the worksheets for your family’s expenses, compute the average monthly total for the children’s indirect expenses and direct expenses.


Here are some do’s, don’ts, and tips to help you handle things when your son or your daughter says, “Mom and Dad, I’m getting a divorce.”

  1. Don’t become personally involved in your child’s divorce.
  2. Don’t ask your friend, the lawyer, to represent your son or daughter.
  3. Don’t go to meetings between your son or your daughter and his or her lawyer.
  4. Don’t let your son’s or daughter’s divorce affect your relationship       with your other children.
  5. Don’t interfere with your son-in-law’s or daughter-in-law’s visitation rights with your grandchildren.
  6. Don’t say bad or derogatory things about your child’s spouse in front of your grandchildren.
  7. Control your protective instincts and avoid becoming caught up in the nastiness of the “he said—she said” side of divorce. Recognize that divorce and family break ups are highly charged emotional events and can easily erupt into violent situations. Take precautions to protect your family’s safety.
  8. Do listen to your son or daughter if he or she confides in you about the break up of the marriage; be supportive, but don’t say things that will fuel feelings of anger, distrust, anxiety, or hopelessness.
  9. Don’t help your child hide money or assets. If you’re caught, in addition to becoming a party to your child’s divorce or a legal action after the divorce, you could jeopardize your own assets.
  10. Do pay extra attention to your grandchildren. Their mom and dad may become so caught up in their own feelings about the divorce, that they will unintentionally fail to spend enough time listening to and doing things with their children.
  11. Realize that your grandchildren’s schedule of life will be drastically changed. They will be shuffled between dad’s home and mom’s home and each parent may jealously guard his or her time with the children. You may have to make special plans, weeks in advance for family get-togethers so that you have time with your grandchildren.
  12. If either of your grandchildren’s parents will not let you have time with your grandchildren, learn about the grandparent visitation laws in your state, and take legal steps enforce those rights if necessary.
  13. Your grandchildren need you during and after their parent’s divorce. Call them on the phone, write letters, send cards, and spend time with them.
  14. If your son-in-law or your daughter-in-law will have custody of your grandchildren, talk to him or her about your access to your grandchildren. Understand that it will be probably be uncomfortable for everyone and that you may be met with resistance, resentment and suspicion. Plan, in advance, for ways you can reduce those feelings.
  15. Become involved in making “new” family traditions for your child and grandchildren to replace those lost in the ending of your child’s marriage.
  16. Attend your grandchildren’s special events, such as sports games, recitals, and school affairs where families are invited.
  17. If there are allegations that your son or your daughter has abused or neglected your grandchildren, be prepared for the possibility that you may be ordered by the court to supervise his or her time spent with your grandchildren. Take this responsibility very seriously and assume that you will have to tell the judge, under oath, about what occurred during the times you supervised your child’s access to your grandchildren. During the time that you are charged with this responsibility, never leave your child alone with your grandchildren and be prepared for the possibility that you will become a target of your child’s spouse or ex-spouse.
  18. Do help your child become educated about the divorce process, financial planning, child custody, and recovery from divorce.
  19. If you own property, especially real estate, with your son and daughter be prepared to be named as a party to the divorce proceedings. This is so the court can “divide” the property in which you have an ownership interest.
  20. If your son or your daughter moves into your home during the pendency of his or her divorce, set rules about household chores, payment of household bills, transportation, and payment for room and board. Have your child sign a lease evidencing your agreement and require regular payments.
  21. If your grandchildren, as well as your child, live in your home during the pendency of your child’s divorce, discuss with your child how your grandchildren’s day care, transportation, discipline and social life will be handled.
  22. If your child doesn’t have any money, receive sufficient financial support, or have enough income to pay for everything that he or she is supposed to, plan for the possibility that you may become a secondary source of financial support for your child and grandchildren.
  23. If you loan your child money to pay for your child’s or your grandchildren’s living expenses, always do it with a promissory note. If possible, secure your loan with any property that your child may receive in the divorce or with your child’s future earnings. Make sure that you charge a reasonable rate of interest and expect monthly payments.
  24. Plan for the possibility that your child may ask you for large sums of money to pay divorce lawyers and other costs of litigation. If you do provide money, always do it in the form of a loan, charge interest, and demand repayment, but expect that it will take a long time to get your money back, if you ever do. If possible, secure your loan with any property or fee award that your child may receive in the divorce.
  25. Tell your child and your grandchildren that you love them. Give them lots of smiles, hugs and kisses. They need them more than ever during and after a divorce.

Hello everyone,

I’m 14 and my parents have been separated since I was 2, divorced when I was 12.

I just wanted to offer you all one small piece of advice. After a divorce make sure you stay in touch with your kids. It is the hardest thing in the world for a child to not know where their mother or father is and not know for sure that they love them.

My father made the mistake of losing touch without ever explaining why to me, my brother, and my sister. My brother and sister now hate him and will have nothing to do with him. I have managed to get in touch with him and have seen him twice in the past three years, but he still will not call my house. If I want to talk to him I need to call him.

Never let this happen between you and your kids. It causes so much unnecessary pain for both sides involved.

Also, if you’re planning on getting a divorce don’t just leave in the middle of th night thinking no one is watching. I saw my father preparing to leave and, even though I was young at the time, I can remember it like it was yesterday. My father doesn’t know that I saw him. This memory has haunted me for so long. If my dad had just told me he was leaving it would have made it easier on me and my siblings.

Please just think about what I have said.


Child passive smoking

Secondhand smoke, also called environmental tobacco smoke (ETS), can have an impact on child custody decisions. The possible consequences of parental smoking in a custody case can range from termination of parental rights or a change of custody and restrictions on visitation to the smoking parent receiving custody with smoking restrictions and a requirement for follow up reports to the court.

First, here are a few facts about secondhand smoke that courts have already taken judicial notice of.

  • Secondhand smoke consists of mainstream smoke exhaled from a smoker’s lungs and sidestream smoke that comes directly from the burning tobacco.

  • Secondhand smoke comes from all tobacco products, including pipe tobacco and cigars.

  • Secondhand smoke is a Class A carcinogen. That puts it in a class with 15 other substances, including asbestos, radon and benzene, that are known to cause cancer in human beings.

  • Secondhand smoke contains 4,000 substances with more than 40 of them known to cause cancer and many of them known to be strong irritants to human tissues and organs. Examples of these substances are: carbon monoxide (CO), ammonia, nicotine, hydrogen cyanide, benzo[a]pyrene, dimethylnitrosamine, tar, formaldehyde, and beta-naphthylamine.

  • The chemicals in secondhand smoke damage cell DNA.

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Retirement plan interests are often one of the most valuable assets, other than real estate, that most couples will have to allocate during a divorce. Chapter Four in Divorce Strategy explains the different types of retirement assets and describes how they can be handled during a divorce. An outline of the subsections in the chapter follows. Then, there is an excerpt from the chapter.

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Child Support Law

Do you, as a divorced parent, have a legal duty to pay for your child’s college education? (not in California) The answer is yes, no, or maybe depending upon the state in which you are divorced.

You could be ordered to pay for all or a portion of your child’s college education if your divorce state has a law giving a court the power to award college support, also called post-secondary or post-minority support. College support may be in addition to child support, a part of child support, or a separate payment after regular child support ends. It can be used to pay for an education at a college, university, vocational school, or other type of post-secondary educational institution.
A court having the power to order college support may consider several factors when ordering you to pay for your child’s college education. Some of these factors are:

  • you and your ex-spouse’s financial resources,
  • your child’s financial resources,
  • your child’s aptitude, ability, goals and interests,
  • you and your spouse’s expectations for your child when you were living together,
  • standard of living the child would have had if you had not divorced,
  • you and your ex-spouse’s standard of living,
  • you and your ex-spouse’s level of education,
  • the post-secondary education of the child’s siblings or half-siblings,
  • the nature of the post-secondary education your child wants, and
  • your child’s age.

These factors vary from state to state, but logic demands that each one should play some part in the decision-making process.

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divorce and retirement

A few months ago, Debbie wrote asking about her interests, as the spouse of a federal employee, in her husband’s federal employee retirement benefits (retirement annuity). Her husband claimed she couldn’t get any of his federal employee annuity as federal law didn’t permit its division. He was mistaken.

Unlike private pension plans, the Federal Employee Retirement System (FERS) and the Civil Service Retirement System (CSRS) are born totally from federal laws and regulations. In a divorce, the division of a FERS or CSRS benefit is done by specific language in a court order, not by a qualified domestic relations order. There are very strict and specific deadlines that must be met by anyone wanting to receive a portion of the employee’s annuity. In addition, there are certain ancillary benefits a divorced spouse could receive only if the court order specifically addresses these benefits.

The administration of FERS and CSRS is handled by the Office of Personnel Management (OPM). Acourt order acceptable for processing is required by OPM before it will do anything with a federal employee’s retirement annuity.

The court order can divide the retirement annuity by a specific dollar amount or by a specific percentage, up to 100% of the retiree’s net annuity. If the divorced spouse wants to share in any future cost of living allowances (COLA), the court order must provide for it, particularly if the division of the retirement benefit is expressed in a dollar amount. A percentage division of the benefit generally includes COLA’s. In either event, the language in the order must give clear instructions to OPM about how it is to divide the employee’s retirement benefit and how the former spouse’s share is to be determined.Continue reading