This blog at this location will be deleted in a couple of weeks, but I’ll still be writing at the above address.  Thanks!

I don’t know what’s wrong with these two, but I bet it’s hard to spell.  I can’t help but notice that neither of them talk about the kids unless they’re either trying to build sympathy for their case or using them as a weapon against the other, as evidenced by the legal battle over “John & Kate Plus 8″.

Back to the money: I don’t know Pennsylvania law, but I’m assuming their procedure is similar to ours in that when a divorce is filed, the court will automatically issue an injunction forbidding either party from changing the family’s financial situation.  This doesn’t mean they can’t spend any money at all, as everybody has the expected bills to pay and regular expenses.  What it means is neither party may change the financial situation by moving, selling, hiding, or otherwise altering major marital assets.

If John believed he could simply remove that much money from the account and get away with it, he’s an idiot.  It is not difficult to determine when money was removed from a bank account and who took it.  Banks keep accurate records about such things, and lawyers are quick to bring those records to the judge when things like this happen.

If John had a leg to stand on in this case, he may have kicked it out from under himself.  Judges are charged with a responsibility to rule with the law, but they don’t forget when a guy leaves his family and drains the bank account leaving the mother without funds to house and feed their children.  Never mind that Kate undoubtedly has money stashed somewhere, John has managed to create the perception that he’s trying to drain marital assets, and he may pay dearly for it later.  Publicly flaunting his new girlfriend is also a stupid move.

The lesson John is learning in this case applies equally to your divorce.  As I wrote above, the court will automatically issue an injunction when your divorce is filed.  This injunction forbids transferring, selling, concealing, or borrowing money against marital property.  Also, you may not change or cancel insurance policies, hide or destroy electronic files or storage media (no trashing the family computer to hide the emails from your special friend), move the children out of the state or more than 100 miles from the family home, or threaten or harass your spouse.  If you believe your spouse is doing any of these things, notify your attorney immediately.

I know I’m a little late on this story, but I’ve been out of town for a few days enjoying time with my wife.  If you care to leave a comment, I’d love to hear your thoughts on the mess these two have created.  I’m sure there’s a lot that could be said.

I love my wife, I really do.  I know this because I remind myself often.  Even more often when things like this happen.

We were at dinner one evening with a group of friends.  I don’t remember exactly why, but we were sitting in the bar section of a restaurant, and I remember watching sports on the televisions mounted on the walls.  Due to circumstances, I wound up sitting near the end of the group, which was fine because most of the people we were with were my wife’s family and friends anyway.

We had decided to make a meal out of appetizers, because that always seems like the sensible thing to do while sitting in a restaurant’s bar watching sports on TV.  I don’t remember what I had, but I do remember that my wife had potato skins.

It’s important for you to understand how much my wife loves potato skins.  To her, this is a delicacy unsurpassed by any other.  She will forgo the finest foods crafted by the world leading chefs in favor of a few half potatoes covered in cheese, bacon, and maybe some chives.  Well, this may be a slight exaggeration, but she really, really likes her “tater skins”.

So now you have the scene.  We’re sitting with friends, there may or may not have been a couple of beers involved, and we’re eating an assortment of junk foods, including chips, pretzels, dips, and of course, potato skins.

After a bit I notice that my wife has been turned away from her plate for a while, deeply engrossed in conversation with her neighbor.  I look down at the table at it seems she had pushed her plate away and turned her back on it.  On her plate was about a half of the last potato skin, sitting there looking small and tasty in the middle of an empty plate.

Basic property law

At this point I need to pause this story to tell you about the law of “abandoned property”.  Property is considered “abandoned” if it has been left by it’s owner in a way that indicates the owner is not going to come back for it.  Abandoned property is available to anybody who finds it and takes it as his own.  This is the only time “finders keepers” actually works.

Back to the story

Knowing property law, and seeing that my wife had pushed her plate away and turned her back on it, you can guess what became of the last half of the potato skin.  To me this little bit of property was clearly abandoned and was up for grabs.  The law was in my favor, the opportunity was there. I calmly picked up the potato skin, smeared some sour cream on it, and ate it.

This went completely unnoticed until a few minutes later when our waitress came by to clear the empty plates.  She only got about a step away from the table when my wife exclaimed “I’m not finished, I want that last piece!”  I think my life flashed before my eyes, but I was too frightened to pay attention.

The details of the next few minutes aren’t important, and it’s just as well because it was all a blur.  I will say that I wasn’t aware she could make her eyebrows touch like that, and never before (or since) has her five feet of height seemed so big.   I suppose it really wasn’t a “fight” so much my standing obediently while she explained to me exactly how wrong I was and what the expected value of my expired carcass would be.

The aftermath

The first thing I learned is there’s no such thing as “marital property” when it comes to food.  I also learned that a second order of potato skins takes a very, very long time to arrive at the table, and being stared at by an angry woman for that length of time is extremely uncomfortable.

This occurred a couple years ago, and with a lot of reminders, begging, support of family and friends, and the purchase of many, many make-up orders of potato skins, we’re doing OK.

If there’s a bigger lesson to be learned here, I’d say it’s that if you make a mistake in your marriage, learn from it and don’t repeat it.  Also, it’s often important to put the needs of your mate ahead of your desire for the last half of an appetizer.  No matter how yummy it is.

Just for fun and discussion I’m going to assume there was no prenuptial agreement.

The stories on the internet make much of the fact that Dave and Regina have had a relationship for many years. However, they’ve only been married since March of 2009, so the acutal marriage is very short and it’s the length of the marriage that matters.

While her lawyer could make a passionate plea to the judge about how she gave up her life to devote herself to this man and blah blah blah.  The fact is that when you file for divorce, the court requires that you submit the date of the marriage and the date of separation.   The court isn’t interested in your first date, your first kiss, or how long you were BFFs before the wedding.

However, they have a child.  This means there will be child support to consider, and for many people that can be a real financial issue.  However, in Tennessee our current guidelines favor people of high income by taking a lower percentage of their earnings.   In fact, if your income is more than $10,000 per month, the guidelines don’t consider any income beyond that level.

New York has a just passed new child support legislation that has a similar effect.  This means that Regina will have to convince the court that the child has become used to, and deserves to continue, a lifestyle that is impossible to support on such minimal child support payments.

While the tabloids are all claiming a divorce might cost Dave “millions”, I think that’s unlikely if the case were to go to trial.  The actual result I’m expecting is a quiet settlement that’s sufficient to keep Regina from writing a book or showing up on every talk show that would have her.

The reason the case in Texas interests me, is because the judge in Texas granted the divorce after finding the Texas law violates the equal protection clause of the federal constitution.

The provision in the Texas constitution that prohibits same-sex marriage is similar (in effect) to the amendment of the Tennessee constitution which limits marriage to one man and one woman.

The decision by the district judge in Texas is not binding on Tennessee, but if a higher court (particularly the U.S. Supreme Court) were to find the law in Texas unconstitutional, it would mean the similar law in Tennessee (as well as many other states) would become ineffective.

The questions isn’t whether or not the law is discriminatory.  There’s no doubt the government is discriminating based on sexual orientation.  The ultimate question that will have to be answered is whether the government’s purpose in reserving marriage to one man and one woman is important enough to justify discriminating against gay and lesbian couples.

This battle is just getting warmed up, and it’s only a matter of time before this issue lands before the U.S. Supreme court.  In fact, the Texas case could be headed that way.  The judge made her ruling on Thursday, and the Attorney General filed a notice of appeal on Friday.

Better yet, just delete them all.  Can’t bear to lose all your “friends” you’ve worked so hard to accumulate?  Then at least delete everything off your pages.  All your pictures, notes, tags, comments, bio, interests, favorites, everything.

What’s the big deal?

Because sometimes the information you put on your page can come back to haunt you in ways you might not expect.  Sometimes what can be found online either leads to, or enhances other evidence.

Most examples are predictable.  One of the grounds for divorce in Tennessee is “Habitual Drunkenness”, and if your spouse uses this, suddenly all those pictures of you and your friends at the bar become a serious liability, even if it was the only time you’d been out of the house in weeks.

In another example, a woman files for divorce, then asks the judge for temporary support from the husband while the case is proceeding.  In her requests she lays out the details of her desperate existence where she has neither the time nor money to adequately clothe and feed her poor children.

How unfortunate for her when her husband shows up to court with a copy of her recent Facebook status that reads “… is back from a shopping trip in LA!”.  Add that to his son’s tweet, “Just got a new Xbox!!!!”.  Furthermore, this leads to the discovery that while she was out of town shopping, she hired a babysitter to watch the kids rather than just let them spend time with their father.

All of a sudden, not only does her situation not seem so desperate, to the judge she comes off a little…. well…  rotten.

I’m too smart, you’ll never me online!

Don’t be so sure.  There are internet investigators who’s business is tracking down online users.  There are also web archives that store copies of old web pages, so even if you’ve cleansed your web pages as your lawyer suggests, the damaging information may still be available.  Your best bet is to assume that if you ever put something on the internet, the opposing lawyer can find it.

Believe me when I say that it’s not fun when your spouse’s lawyer sends a copy of your profile they found on a dating website.  It’s even worse when a note is attached that reads, “I think your client may have understated her weight.”

Snarky comments from opposing counsel aside, the lesson to be learned is while these social web sites have dramatically broadened our ability to reach out and connect with current and past friends, they have also exponentially increased the ability for gossip and damaging news to spread.

Furthermore, you may think you’re safe because your security settings are high, or your Facebook page is only viewable by friends.  That’s not a bad move, but it only takes one mutual friend who is willing to let your spouse view your profile on their computer, and you’re sunk.

So what can I do?

If you are going to continue to use social media sites during your divorce, you need to think long and hard about what you post online.  Your best bet is to stop using them altogether and express your hurt and anger the old fashioned way, meaning to trusted friends, family members, or a counselor who has a legal duty to keep your conversations private.

The Long and Short Marriage

If your marriage has been relatively short, the court will likely try to return the parties back to the position they were in before the marriage started.   For example, suppose a woman with a great deal of income and property marries a man who owns very little and the marriage only lasts a year or two.  The court will likely divide the property so that the man leaves the marriage with very little and the woman will retain her wealth.

On the other hand, in marriages of longer duration the court will begin with a presumption that all of the marital property should be divided equally.  The theory is that each of the parties contribute to the acquisition of property and are equal co-owners of all marital property.

However, these are starting points for the court, and the division of property can be greatly altered when the court examines the factors listed below.

What is “Marital Property”?

One of the very first steps you should take is to list all of the property you and your spouse acquired during the marriage.  This includes land, houses, time shares, businesses, stock, mutual funds, retirement accounts, insurance with cash value, vehicles, bank accounts, checking accounts, investments, collections, household furnishings, and anything else you may own that has value.

This includes any property that was fraudulently conveyed in anticipation of the divorce.  In plain english, this means that if one spouse thinks he can “hide” some of the property by giving it away to his friends just before the divorce, he is wrong.  The court can “give” the value of this transferred property back to him during the property division.

What is “Separate Property”?

Any property you owned before the marriage is your separate property, and anything you received in trade for that property is also separate.  What this means is that if you sell property that you brought into the marriage, the money from the sale is yours.

Also separate is any property given to you either as a gift or through a will.  Furthermore, an IRA that you owned before the marriage remains your separate property.

Finally, if you have received an award by a court for pain and suffering, future medical expense, or future lost wages, that is also considered your separate property.

Value of Property

It is up to the parties to prove the value of the property.  The judge will likely be dividing property he has never seen, so he will rely on you to show what each piece is worth.  For valuable items, it may be worth paying an expert to assign a reasonable market value.  This can be very important if the property consists of businesses, collections, rental property, antiques, or stock in closely-held corporations.

The Division of Property

Earlier I wrote that the court will begin with certain “starting points” based on the length of the marriage.  The court can move away from those starting points based on several factors listed by statute, including:

• The age, health, education, earning capacity, and financial needs of the parties;
• The contribution one party made to the education or training of the other party;
• The ability of each party to acquire property and income in the future;
• The contribution of each party to the growth or loss of the marital property;
• The value of each parties separate property;
• The economic circumstances of each party at the time of the division;
• The tax consequences and cost of maintenance or sale of the property;
• The social security benefits available to each spouse; and
• Any other factors the court should consider to make the division equitable.

The last one on that list is important, as it clearly states the court can consider other criteria when considering the division of property.  Other things the courts have considered include:

• Agreements or contracts between the parties;
• Gifts from one party to the other;
• How much an asset has gained in value;
• Whether an asset is inherited or has important ancestral history;
• Ability of each party to manage income producing property; and
• Ease of converting property into cash.

This is only a partial list, and the courts have found many other factors to consider when splitting up marital property.  However, I must repeat that there is a strong presumption that marital property should be divided equally, so if you are going to make the argument that you’re entitled to more than half, you should be prepared to show that many of the factors above weigh in your favor.

It Is So Ordered

Finally, the property division will become an order of the court.  The court can order that each party complete whatever paperwork is required to affect the transfer of the property from one person to another.  If your ex-spouse refuses to cooperate, the court can find him in contempt of court and possibly let him sit in jail until he is willing to abide by the court’s order.

This is a very short summary on the law of this area.  I left out a lot of details and there are exceptions to nearly every rule.  If your divorce involves significant property, I can’t overstate the importance of working with a lawyer to help you protect your assets.

What about Tennessee, could a same-sex married couple be divorced here?

Divorce is a remedy that may be awarded by a court.  Tennessee uses a fault-based system for dissolving a marriage.  This means that in order to be awarded a divorce, you must prove to the court that either your spouse has acted in a way that gives you adequate grounds for divorce, or that irreconcilable differences have arisen between the parties.

Either way, the award of a divorce is only appropriate if a marriage had actually existed between the parties.  The question is then, would this couple’s marriage be valid in Tennessee?  After a much publicized battle and vote, our state constitution was amended to read:

The historical institution and legal contract solemnizing the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state. Any policy or law or judicial interpretation, purporting to define marriage as anything other than the historical institution and legal contract between one (1) man and one (1) woman, is contrary to the public policy of this state and shall be void and unenforceable in Tennessee. If another state or foreign jurisdiction issues a license for persons to marry and if such marriage is prohibited in this state by the provisions of this section, then the marriage shall be void and unenforceable in this state.

It may seem unfair, but since Tennessee cannot recognize a same-sex marriage, the courts cannot award a judgment of divorce to these couples.  This is exactly the same situation as in Indiana.

Before you send me any hate mail, the paragraph above is entirely tongue-in-cheek.  I discovered that graphic while surfing, and I found the numbers to be interesting.

Single and Looking?

If you’re looking for a single person who has not tested the waters of married life, your best bets are Davidson and Shelby counties, where 35 and 37 percent of people have never been married at all.  Davidson county also leads the state in divorce, where 15% of people are divorced.  Shelby is a bit behind with only 11 percent of residents having been divorced.

Where Are the Married People?

Married couples should not be difficult to find in Montgomery, Sumner, Greene, and Sullivan counties, where at least 60% of residents are married.  I’ve already poked fun at Greene county, but in Sullivan county 8% of the population is also widowed.

What Does it All Mean?

Quite frankly, I have no idea.   What I would mention is that divorce still seems to carry somewhat of a stigma, at least to some people.  Clients come to me sometimes feeling humiliated that they are having to end their marriage.  Some of them feel it is an indication of some sort of failure on their part.

It shouldn’t be this way any more.  In Davidson county, about 1 out of every 7 adults are divorced (I’m assuming these statistics apply to people of marrying age).  We should be past the point where there is any shame in ending a marriage that isn’t working any more.  What’s worse, staying in a relationship where everybody is miserable, or casting off that burden and seeking happiness elsewhere?

What do you think these numbers mean?  Is there some obvious meaning I’m missing here?

This may not be easy.  The courts tend to hold the bar high when analyzing these cases because the courts recognize that consistency is important to children, and the parenting schedules should not be changed upon every whim of the parents or children.

Material Change in Circumstances

The first step is to prove to the court there has been a material change in circumstances that affects the child’s best interest.  The last part of that sentence is important, as sometimes major changes will have little or no effect on the children.

For example, you may discover your former spouse has taken a new job which requires the child to spend more time in daycare.  This may be a huge change for your ex, but unless there is an adverse impact upon the child the court won’t bother with it.

I reviewed some of the recent cases in Tennessee to discover what the courts believe will be a material change.   In a few cases, the parent was able to show the court the child had experienced severe psychological damage from either the current parenting schedule, or some action by the other parent.   In these cases the court relied heavily on the testimony of physicians, counselors, or psychologists.

Another way to show a material change is to prove to the court that the other parent is deliberately interfering with your parenting time or parental responsibilities.  Typical complaints are that the other parent isn’t following the visitation schedule, refusing to share information about extracurricular activities and medical information, changing residences and refusing to share the location of the child, refusing to allow telephone conversations with the child, or anything else that might interfere with the relationship between parent and child.

On the other hand, sometimes obviously poor choices won’t be enough for the court.  In one case, the court found that the mother had been riding four-wheelers, with the children, while drinking beer.   She had also been allowing the children to ride the four-wheelers without helmets.  The Court wrote that “an apparently
isolated episode of poor judgment of this nature is insufficient to establish a material change of
circumstance. If that were the case, no parent ever would be able to maintain custody of his or her
children as parents are inherently human and fallible.”

Best Interests of the Child

If the court finds that a material change in circumstances exists, you might feel like you’ve won the case.  However, the second step may still trip you up.  You still need to prove to the court that making a change to the visitation schedule is in the child’s best interests.  The policy (and the law) is that even if the primary parent has messed things up, it could be that placing the child with the other parent is still worse.

Therefore, the court will start fresh with a look at multiple factors including: The love, affection and emotional ties existing between the parents or caregivers and the child; The disposition of the parents to provide the child with food, clothing, and other necessities; The importance of continuity in the child’s life; The stability of the family unit of the parents; The mental and physical health of the parents; The home, school and community record of the child; The reasonable preference of the child, if twelve years of age or older; Evidence of physical or emotional abuse; The character and behavior of any other person who resides in or frequents the home of a parent; and Each parent or caregiver’s past and potential for future performance of parenting responsibilities.

The court has much discretion in deciding which of the above factors is most important, and which factors favors each parent.  The court is also free to add additional elements not included in the above list.  Notice that while the preference of the child is a factor, it is only one of many items the court may consider.

Finally, the court will draft a new residential schedule based on the above analysis.

What You Need to Know

If your children spend more time with the other parent and you believe the situation should change, your best bet is to demonstrate to the court that the other parent has shown a pattern of behavior which harms the children in some way.  This could be emotional damage, physical danger, or damage to your own relationship with the child.

Next, you’ll need to prove that you have demonstrated the ability to be the better parent.  The court doesn’t want to hear promises, no matter how heart-felt.  The court is interested in what you’ve already done.

You will benefit from the advice of an attorney.  An attorney can help you find your way through the procedure, court rules, and the best manner of showing the court that the children will continue to suffer unless they are allowed to spend more time with you.