Dispostion of the family home frequently causes problems in a divorce. Custodial parents may want to hang onto the home for the sake of the children. Perhaps one or both spouses can’t afford to purchase a similar replacement home. Much depends upon the amount of equity in the home and the ability of each spouse to keep it.

The following is a portion of a chapter from Divorce Strategy that contains information to get you started on the road of evaluating your divorce decision about your real estate.

For most couples the family home is the highest valued asset they will have to divide in their divorce. Its division is usually fraught with controversy for varying reasons. It may be difficult to value, is not readily converted to cash, costs a substantial amount of money to maintain and has implications of federal and state tax liability. As if all those things were not enough, your family’s emotional attachment to your real estate, in particular a family or vacation home, can cause you to make an irrational or poor decision at the time of the divorce. Your family may be haunted by that decision for years after your divorce.

Some questions that you need to answer are:

• Should you sell the family home?
• Do you keep it until the children are grown?
• Should you keep the home and buyout your soon to be ex-spouse, or vice versa?
• Can either of you afford to keep it after the divorce?

The answers to these questions and others can help you avoid or plan for problems associated with your real estate. Historically, the family home is the asset that most often causes controversy both before and after a divorce.

The principal reason for this problem is the timing of the sale of the home and the division of the net proceeds. Both events frequently occur some time after the divorce. In addition, couples seldom plan as they should for the payment of household maintenance and upkeep during the pendency of the divorce. At first glance the family home appears to be the easiest asset to identify and describe. For purposes of a divorce, the description of your ownership interest in your home and other real estate can be very complicated with pitfalls for the unwary. As with the division of personal property, the rules and laws regarding the division of real estate vary from state to state. Consult with your lawyer about your rights and responsibilities after you have read this section and put together your worksheets.

Before you see your lawyer, gather the necessary documents and records about each piece of real estate. Get the documents not only for the property titled in your name, but for all the property in which you or your spouse has an ownership interest. This includes property that you own in either of your names alone, jointly with another person or property owned by a trust or business in which either of you have an interest.

Key Factors<

There are six key factors about your real estate that affect the handling of the asset or the distribution of the net proceeds from the sale of the asset in a divorce. The factors are:

• identification of the type of real estate and the type of ownership interest you have in the property
• the ownership history of your real estate
• real estate, income and capital gain taxes
• debts, such as loans and tax liens, that are secured by the real estate the value of the real estate
• the plans you must make to pay for and maintain the real estate during the pendency of the divorce and afterward

The following sections describe in detail these six factors.

Identification

As previously mentioned, most couples own an interest in real estate in the form of a family home. Other types of real estate that you may own are vacation property, rental property, commercial or office buildings, buildings on land leases, vacant land, mineral rights and other types of special use real estate. Whatever type of real property you may own, each one has unique features that could affect how you can utilize it in your divorce, especially in the context of a settlement agreement. The following sections of this chapter contain examples of some of the methods you might use.

How you hold title to the real estate may determine, in large part, what interest you and your spouse have in the real estate. Most married couples own property as tenants by the entirety and each spouse has an undivided one-half interest in the property. A divorce ends the ownership in tenancy by the entirety. Joint tenancy is similar to tenants by the entirety except that the owners are usually not married to one another. In joint tenancy and tenants by the entirety, if one of the owners dies, the deceased person’s interest passes to the other owner by operation of law. Another way of holding title is as tenants in common. The interest owned by each tenant in common is divisible and can be inherited by the owner’s heirs. This is customarily the way that unrelated persons, including divorced people, own real estate together. It may be the way that you and your ex-spouse own your real estate after the divorce.

History of Ownership

It is important to establish and document the history of your real estate ownership because each parcel’s history affects the property’s net worth. For example, real estate has tax implications that are usually assumed by the person receiving it in a divorce. Additionally, the history of your real estate helps you determine if the real estate that was owned before the marriage or inherited during the marriage is marital or separate property. Finally, the history of the land usage enables you to analyze the financial and environmental risk, if any, you could incur from owning the property.

Prepare a history of your home ownership for each property you have owned, including those which you have sold. Make notes about any miscellaneous information that is important about the real estate. Put together any source documents you used to back up your information. Organize your documents so that your history table is the first document in your real estate file. Then attach the supporting documents in descending or ascending order to the file folder. Some of the relevant information you need for each piece of real estate is:

• Address, purchase price and date purchased
• Down payment amount and source of funds for the down payment
• Original loan amount and current balance
• List of improvements you have made and their cost depreciation claimed on any prior year’s tax return
• Insurance proceeds received from any claim
• Costs to repair any damages or restoration costs
• Date sold, sale price, costs of sale and net proceeds

Disclaimer

The author and publisher of this article have done their best to give you useful and accurate information. This article does not replace the advice you should get from a lawyer, accountant or other professional if the content of the article involves an issue you are facing. Divorce laws vary from state-to-state and change from time-to-time. In addition, it is a very fact-specific area of the law, meaning that the particular facts of your marriage and divorce, as well as other external factors may determine how the law is applied in your situation. Always consult with a qualified professional before making any decisions about the issues described in this article. Thank you.

by Laura Johnson

Do you, as a divorced parent, have a legal duty to pay for your child’s college education? 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.

Even if you and your spouse don’t get divorced in a state that has a law for some form of college support, you can agree to the payment of college support. The agreement must be in writing and must clearly and specifically describe each parent’s duties regarding the payment of college support. It may also have one or more specific limitations to act as a guide or cap. Your state may have case law (decisions from an appellate court) setting out what terms must be in a college support provision so that it can be enforced by a court, either in a separate contract suit or by the divorce court.

Examples of some types of limitations you might find in the college support provisions of a divorce agreement are:

• limiting you and your ex-spouse’s college support obligation to a maximum number of consecutive semesters, with summer or winter abbreviated schedules not counting as a semester
• capping the annual payment that you or your ex-spouse is responsible for paying
• tying each of your respective portions to the then-cost of a particular educational institution, usually a state college or university, the college the parents agree the child can attend, or the school the child is attending at the time of the agreement
• describing the items to be included as post-secondary educational expenses, such as tuition, room & board, sorority or fraternity dues, books, fees, etc.
• detailing how any grants, scholarships or student loans taken out by the child effect each of your obligations
• Describing how any educational saving accounts are to be applied to each of your obligations.

Many parents wonder what responsibility their child has regarding college if his or her parents are under a court order to pay for college. Once again, the answer depends upon the law in your state or the particular facts of your family’s situation. Some states have imposed requirements that a child must meet to qualify for college support. These requirements may be:

• acceptance and enrollment in a post-secondary educational program within a certain time period after graduation from high school,
• taking enough credit hours each semester so that he or she is considered a full-time student achieving acceptable grades in each course so that he or she remains qualified to re-enroll in the same school the following semester,
• providing a copy of grade reports to each parent,
• continued enrollment so that the college enrollment is in consecutive semesters, and/or
• attendance in the courses he or she enrolled in.

If you are ordered to pay college support for your child, don’t assume that you are relieved of the obligation if your child doesn’t qualify for your continued support based upon the items in this list. It may take either an express agreement between you and your ex-spouse or the order of a court to officially relieve you of any responsibility.

If you are the noncustodial parent ordered to pay college support, do you still have to pay your ex-spouse child support? The answer is: maybe,  yes, or no depending upon your state law. In some states child support terminates, as a matter of law, when the child reaches the age of 18. In others, the age of termination is 19 or 21. Be aware though, even if your child has reached the age of termination in your state, he or she may still qualify for continued child support under certain circumstances, such as enrolling and attending a post-secondary educational program or having a physical or mental disability that precludes the child from becoming self-supporting. If you are in doubt, always consult with a lawyer about whether child support stops, is reduced, or stays the same when college support is also being paid.

When ordering post-majority support the court could decide to look at the following expenses that a custodial parent might incur for a child who is attending college:

• transportation expenses to and from school,
• living expenses while at home,
• one time expenses to buy necessary items for the child to set up a “home away from home”,
• the cost of health insurance,
• the cost of medical and dental expenses that aren’t paid by health insurance, and/or
• and any other type of expense necessary for the child’s reasonable living expenses while attending college and living away from home.

In some cases the custodial parent has to pay for the child’s college support before there is a court order instructing the noncustodial parent to contribute. In those situations, the court might have the ability to order the noncustodial parent to reimburse the other parent for all or a portion of the child’s expenses that have already been paid. Alternatively, the court could make an award of college support retroactive to a certain date. So, in addition to an order for future college support, there could also be a lump sum awarded for past support.

If you are ordered to pay both child support and college support, can you get the amount of child support reduced? After all, you’d think that the custodial parent’s costs for a child who is living away from home nine months out of twelve wouldn’t be as much as when the child lived at home full time. Some courts have said that the amount of child support should be reduced to reflect decreased expenses. Others have said it shouldn’t be reduced because the custodial parent still has costs to maintain a home, to provide transportation, and to pay for the child’s necessities. This decision is very fact specific based upon each parent’s legal obligation to pay for the child’s needs while he or she is attending college. In some cases, any expenses that you voluntarily pay might impact a court’s decision, but you need a track record to support your claim.

Can you pay your portion of college expenses directly to the school? Again the answer is maybe. It is another of those things that is very fact specific to your family’s situation.

Can you pay the child support directly to your child instead of your ex-spouse? Maybe, especially if your child is living off campus and has rent, utility, grocery and other regular bills to pay. In some situations, you may be able to pay a portion of the support directly to your child instead of the full amount. That way your son or daughter has funds to pay for direct expenses while at school and your ex-spouse receives a contribution from you toward your child’s housing, clothing, transportation and other fixed expenses.

The age of your child affects whether a court will order college support at the time of a divorce or modification. Absent an agreement between your and your ex-spouse, it’s highly unlikely that a judge will order college support for your child unless he or she is in high school.

Your child’s financial resources might make a difference in the amount of college support you have to pay. It depends upon the nature and amount of the resources. Savings, investments, trust income or assets, other liquid assets, or income from sources other than your child’s employment are some examples of a child’s money that might be used to pay college expenses. Anything left unpaid after the depletion of your child’s money could be paid by you, your ex-spouse, or split between you.

The following items are several things you can do to plan for your child’s post-secondary educational expenses:

• investigate prepaid tuition plans at your state university or college,
• invest in a Coverdell Education Savings Account,
• set up a special savings account for college expenses,
• help your child apply for grants and scholarships, or
• apply for parent loans.

Student loans will not help reduce your out-of-pocket costs as an obligated parent. Most courts won’t permit you to reduce the amount of college support you are ordered to pay by the amount your child is able to borrow. Likewise, if you have a tuition remission program available to you as an employment benefit, you probably won’t be able to use that benefit to cover your portion of the college expenses, while your ex-spouse must use money to pay for his or her portion. Courts generally rule that both parents get the benefit of a tuition remission program.

There is a very small body of law, primarily in Pennsylvania, supporting the claim that it’s unconstitutional for a court to order divorced parents to pay for a child’s college education. After all, parents who are not divorced have no legal obligation to pay for their child to receive a college education. Why should divorced parents not be afforded the same rights and protection as parents who aren’t divorced? See Curtis v. Kline, 666 A.2d 265(1995).

The following states have specific statutes or case law that give courts the authority to order college support in some form: Alabama, the District of Columbia, Georgia, Hawaii, Illinois, Indiana, Iowa, Massachusetts, Michigan, Missouri, Mississippi, Montana, New Hampshire, New Jersey, New York, North Dakota, Oregon, Rhode Island, South Carolina, Utah, West Virginia and Washington. Even though your state isn’t included in this list, you and your spouse can agree, formally or informally, for the payment of college support.

by Laura Johnson

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).

There is a way to completely restore a failing relationship with a new modality that until now was not thought possible. To learn what is required you may wish to read this article.

If two individuals are intent on trying one last time to make their relationship work then there is a way. A relationship is just like a person. It stores within it the sum total of all the memories that make it up. After all when individuals talk about their relationship what do they talk about if it?s not what happened to them i.e. their history. It is the same history that each partner uses against the other and against the relationship to justify why it is worth leaving. Without such information one would be hard pressed to make a case for or against a relationship. This would present a clean slate from which to create something totally fresh, would it not?

Now I know that you?re probably thinking that this sounds a bit dubious at best. I would like to let you know that I have worked with individuals this way for over ten years with very promising results so please try to keep an open mind as you read on.

Now just a word of caution here first. Individuals who enter into a relationship always bring with them the history of their lives that preceded that relationship. This history includes other relationship experiences which are either helpful or not.

In order for a failing relationship to start afresh it also becomes necessary to address destructive relational patterns that already pre-existed in each individual.

Even if a divorce takes place it becomes imperative that the corresponding individuals address this history adequately so that they don”t carry it into the next relationship.

When this happens history tends to repeat itself and in the process consumes an individual’’s life leaving them sad, untrusting and cynical.

So in order to redeem a current failing relationship three things are necessary:

1. Two individuals in integrity who are committed to trying again.

2. The effective release of the negative memories of the current relationship from the minds/bodies of each individual.

3. The effective release of any negative relational patterns that each individual brought into the relationship at its inception.

Part 1 must come from the individuals. Here love is the key to integrity and commitment. If its there great. If not it becomes exceedingly more difficult to make this work.

Parts 2 and 3 can be addressed quickly and easily with a new process called the Mind Resonance Process(TM) (MRP).

MRP helps individuals clear all traumatic memories that the couple hold within them.

It is just such memories that fuel negative feelings against the other and against the continuation of the relationship itself.

Such memories can be released in a way that helps restore the genuine love that the individuals had for each other initially.

What’’s more it can facilitate the necessary emotional growth that such individuals needed before they even entered this relationship.

So what is being said here is that not only are they able to start afresh, they become more capable and mature individuals.

This makes the fresh experience more rewarding and the new relationship more resilient.

If you and your partner are going through a tough time and you feel inspired to experience what MRP can do for you kindly visit the web link below and consider arranging an introductory consultation

Dr. Nick Arrizza is trained in Chemical Engineering, Business Management & Leadership, Medicine and Psychiatry. He is an Energy Psychiatrist, Healer, Key Note Speaker,Editor of a New Ezine Called “Spirituality And Science” (which is requesting high quality article submissions) Author of “Esteem for the Self: A Manual for Personal Transformation” (available in ebook format on his web site), Stress Management Coach, Peak Performance Coach & Energy Medicine Researcher, Specializes in Life and Executive Performance Coaching, is the Developer of a powerful new tool called the Mind Resonance Process(TM) that helps build physical, emotional, mental and spiritual well being by helping to permanently release negative beliefs, emotions, perceptions and memories. He holds live workshops, international telephone coaching sessions and international teleconference workshops on Physical. Emotional, Mental and Spiritual Well Being.

Business URL #1: http://www.telecoaching4u.com

Personal URL: http://www.telecoaching4u.com/Spirituality_And_Science.htm

by Laura Johnson

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

Ex-spouses aren’t the only people at risk of being a party to a marital tort action. For example, if the underlying tort is fraud or spoliation of evidence for hiding assets, lying about the value of assets, or transferring assets to deprive a spouse from having the asset included in the marital or community estate during a dissolution of marriage, anyone who assisted in the wrongful activity is at risk. It could be an accountant, a bookkeeper, a lawyer, a stockbroker, a family member or a friend.

In addition to tort claims, some people have been successful bringing cases under the federal Racketeer Influenced and Corrupt Organizations Act (RICO), 19 U.S.C. Sections 1961-68. This permits a plaintiff to sue for treble damages and attorneys fees. Some examples of behavior that might be addressed in a RICO suit are a spouse using marital assets improperly or concealing the true amount of income during a divorce.

An option that may exist for some plaintiffs involves the federal Violence Against Women Act of 2000 (VAWA) where the plaintiff can ask for compensatory and punitive damages and attorneys fees. The elements to a VAWA action are: The defendant committed a crime of violence that rose to the level of a felony and the conduct was gender-motivated. The defendant doesn’t have to be charged with a crime and the defendant’s behavior doesn’t have to be classified as a felony in the state where the act occurred.

An interesting area of law is developing in the area of wiretapping and the illegal interception of communications. There are federal and state laws about wiretapping and what may be legal in one state, isn’t in another, or isn’t in federal court. Some examples of communication interception that may be the basis for a suit are: telephone wiretaps, eavesdropping on cellular communications, eavesdropping on cordless phone conversations, downloading your spouse’s e-mail files, getting records of your spouse’s conversations on Internet chat rooms, or intercepting beeper messages.

Spoliation of evidence might be brought when a spouse has destroyed documents that would support a claim about real estate ownership or other interests in real estate. Not all states recognize this cause of action.

Many divorce lawyers do not discuss marital tort actions with their clients. Some lawyers who specialize in this field of law believe that when a divorce lawyer fails to explore the possibility of a martial tort action with a client, that the lawyer has committed malpractice. If you believe that your spouse may be liable to you for his or her past and present actions, bring it to the attention of your lawyer by asking, “Can we talk about whether I can file a marital tort action against my spouse?”

Don’t wait until the divorce is over to ask that question. In some states a marital tort must be joined with the divorce action. If you don’t bring it at the same time as the divorce, you lose forever the right to pursue the marital tort. Other states permit the tort action to be joined with the divorce but don’t require it. Other states don’t allow the tort action and divorce action to be joined at all. Still other states don’t permit marital tort actions. In others, the courts don’t really know what to do with marital torts, especially when the divorce is always a judge-tried case and the marital tort action can be tried by a jury. Be sure to ask your lawyer to explain the law of your state regarding marital torts.

There are some benefits from joining a marital tort with the divorce. The total expenses for legal fees and costs of litigation are reduced. The evidence in the divorce case can be used in the tort case. There are also some disadvantages to joining a divorce and a tort action. If the divorce action is tried by a judge instead of a jury, and the divorce judge also makes the decision in the tort action, the potential award from the tort may be much less than what a jury would award. In addition, a judge may not award the victim as much as he or she could get in a divorce action because of the award in the tort action.

The problem with many marital tort actions is that there isn’t anyone to sue who has enough money to make pursuit of the action worthwhile–it’s the “deep pocket” problem. Many potential suits aren’t filed simply because the defendant doesn’t have sufficient assets or income to permit the plaintiff to collect on any award, including an award for attorneys fees.

Sometimes the deep pocket problem can be addressed by bringing third party defendants into the cause of action. For example, a homeowners insurance company may pay on a claim for a negligence suit, police for failure to enforce a restraining order, an accountant for failing to disclose certain financial records, or a family member for helping to hide a child so a parent is prevented from having access to the child.

Many divorces are completed by a settlement or separation agreement. It is standard for many lawyers to have a boilerplate provision called the waiver. The purpose of the provision is that each spouse agrees that the settlement reached in the divorce acts as a complete settlement of any legal claims or issues that may arise from their marriage. This waiver provision has value if a marital tort is a potential suit or is already filed.

And, if you sign the settlement agreement with the waiver, you could be signing away your right to file a tort action from events that occurred during your marriage. You may still be able to file a tort action for events that occurred after the divorce or if the waiver is specific in nature instead of a general waiver. Check with your lawyer during settlement negotiations.

Finally, if you believe that your spouse may have a marital tort cause of action against you, discuss it with your lawyer. It is possible that you may make certain admissions or statements during deposition testimony, answers to interrogatories, or in a trial. Those admissions could be used by your spouse or ex-spouse to support a marital tort action. The same goes for any findings made by a judge regarding your conduct during the marriage.

Always discuss marital torts with your divorce lawyer. If you think that you have been a victim of your spouse’s misbehavior, describe the behavior to your lawyer and then ask, “Is that behavior the basis for a potential marital tort action?” Don’t be shy or embarrassed to tell what happened. Your lawyer needs to know so he or she can appropriately advise you of your legal rights and opportunities.

If you think that you face the risk of being the defendant in a tort suit, tell your lawyer about the behavior that you believe may put you at risk and ask, “Does that behavior put me at risk for a marital tort action, and if so, what can we do in the divorce action to protect me from it in the future?” One caveat to admitting bad behavior, especially secreting of assets or lying about income, you may find yourself looking for another lawyer.

by Laura Johnson

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.

© 1997 Broken Heart Publishing

Byline: Dianne Williamson

COLUMN: DIANNE WILLIAMSON

It seemed like just yesterday, during the halcyon time in the life of Britney Spears, that I saw her strut frenetically around the Worcester Centrum and later advanced the theory she was, quite possibly, the devil.

It was July 2002, and Britney had been named the No. 1 celebrity in the world by Forbes magazine. I had gone to her concert prepared to be bored, and later realized to my horror that I was humming one of her stupid songs on the way home.

That’s part of the reason I suggested that she may well be the anti-Christ. I noted that the then-20-year-old pop tart didn’t sing particularly well and had lowered the standards of music around the world. I mentioned that her image of a virgin trapped in the body of a slut had caused mass confusion among parents, who weren’t sure whether Britney was helpful or harmful to the psyches of their impressionable daughters.

“Isn’t that the job of the devil?” I wrote. “To subtly seduce, to destroy the value of what we hold dear, to chip away at our very senses?”

The column was a bit tongue-in-cheek, but that didn’t stop legions of 12-year-olds from zipping off feverish e-mails rife with exclamation points, explaining that Britney rules and she’s, like, totally talented, and I’m just jealous because I’m old and not as pretty as her and besides, I happen to be an idiot.

What’s happened since then is the same old story. Britney married a guy in Vegas, divorced him a few hours later, married K-Fed, had kids, divorced him, shaved her head, neglected her children in full view of the paparazzi, inexplicably adopted a British accent, took to wearing no underwear in public, danced like a cyborg zombie at the MTV music awards, reached out to Oprah-endorsed TV psychologists, and had major televised meltdowns.

Now, we’re supposed to feel badly for Britney. The poor kid is a victim of a celebrity culture that chewed her up. Her addictions, self-absorption and bizarre behavior are cause for compassion, not contempt. The fact that she has a gazillion dollars and countless “people” to cater to her only increases our sympathy.

I’m trying to keep up, really. Now, though, comes news that the paparazzi are over Britney. According to the New York Daily News, a top photo agency head claimed that the media has moved on. “Over the weekend, there were less than a half dozen covering Britney,” said BuzzFoto founder Brad Elterman.

Dare we dream? Is this an April Fools’ prank? Or is it bye-bye Britney?

I’m guessing, not a chance. It’s pointless to argue that we should pay no mind to this pampered young star, because we can’t help ourselves. Which is too bad. Britney, you’ve been chasing the limelight since you were born. It’s time to give it a rest. Your public is exhausted.

For starters, I’m tired of according sympathy to spoiled celebs who don’t deserve it. I don’t care if Britney or Lindsay Lohan or Paris Hilton are in recovery or rehab or crisis or drunk or desperate or looking for love or crying on the inside. These women have been given every opportunity and lived lives most girls dream of. And they behave like imbeciles. I choose to save my sympathy for girls raised by drug-addled single moms who can’t afford publicists and high-priced rehab centers. When Britney became such a train wreck that K-Fed was considered the stabilizing influence in the family, that’s when I chose to jump off.

But I sense we’re not quite done with her, or her demons. Just as paparazzi interest supposedly wanes come rave reviews for Brit’s small role in the sitcom “How I Met Your Mother.” She played a ditz who uttered the line, “Can we have sex and then go shopping?” Now there’s a stretch. Now, rumors swirl that she’s being offered the role of tragic boozer Blanche DuBois in a new London theater production of “A Streetcar Named Desire.”

Perhaps most chilling, though, is news that the paparazzi have moved on - to wholesome Miley Cyrus. Mr. Elterman says the paparazzi want “something new and fresh,” and so the pack has shifted to the 15-year-old pop star, who, so far, still remembers to wear panties in public.

Too bad that’s no April Fools’ joke.

Contact Dianne Williamson via e-mail at dwilliamson@telegram.com.

A Message From Jill

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.

Jill

Secondhand Smoke and Child Custody

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.

Here are a few facts about how involuntary smoking, or passive smoking, effects children:

• Children, especially infants and toddlers, exposed to secondhand smoke have more lower respiratory infections, such as bronchitis and pneumonia, and are more likely to be hospitalized during the first two years of their lives for a serious lung problem.
• There is a link between secondhand smoke and infants who died from Sudden Infant Death Syndrome (SIDS).
• Children exposed to secondhand smoke are more likely to have reduced lung functioning and symptoms like coughing, sneezing, excess phlegm, wheezing, stuffy nose, headaches, sore throat, eye irritation, hoarseness, dizziness, nausea, loss of appetite, lack of energy, or fussiness.
• Children exposed to secondhand smoke are more prone to middle ear infections. Passive smoking can lead to a buildup of fluid in the middle ear as a result of irritation and swelling of the Eustachian tubes connecting the middle ear and nasal passages.
• The greater the amount of parental smoking the more frequently children of those parents have respiratory infections.
• In families where both parents smoke, the children have significantly more respiratory infections.
• Children exposed to passive smoking have significantly reduced pulmonary functioning and their lung growth is hindered. Since they subsequently fail to reach their optimum lung growth, they are more likely to have pulmonary health problems as adults.
• Maternal smoking relates more closely to childhood respiratory infection than paternal smoking.
• Children exposed to secondhand smoke are more likely to develop asthma. For those children who already have asthma, exposure to secondhand smoke increases the frequency and strength of a child’s asthma attacks.
• Children exposed to parental smoking are more likely to suffer accidental cigarette burns and hazards from fires set by children playing with matches and butane lighters or parents leaving burning cigarettes unattended.
• Adults, who as children were exposed to significant levels of secondhand smoke, are more likely to have lung cancer, heart disease and cataracts.
• Children exposed to parental smoking are more prone to becoming smokers.
• Children exposed to parental smoking have emotional and psychological concerns about the smoking parent’s health.

Facts about secondhand smoke and smoking for pregnant women:

• Women who smoke during pregnancy or who are repeatedly exposed to secondhand smoke are more likely to have a miscarriage.
• Babies, whose mothers smoke or who are repeatedly exposed to secondhand smoke, are more likely to be born stillborn, premature and not fully developed, or with a lower birth weight.
• Infants whose mothers smoked during the pregnancy or were repeatedly exposed to secondhand smoke are more prone to Sudden Infant Death Syndrome (SIDS).
• Children, whose mothers smoked during the pregnancy or were repeatedly exposed to secondhand smoke are more likely to suffer from some childhood cancers.

In a custody fight, courts across the country can, and have, done the following:

• Determined that the risks to the child’s health in exposure to secondhand smoke from parental smoking are one factor among several others that should be used when determining what custody arrangement is in the best interests of a child.
• Taken judicial notice of the effects of secondhand smoke on children.
• Ordered the smoking parent to restrict his or her smoking when the children are present or before exercising a period of custody.
• Transferred custody from the parent who smokes to the nonsmoker parent.
• Taken custody from both parents and awarded it to a relative or other third party.
• Retained jurisdiction for a period of months after entering a custody order to check on parental compliance with orders.
• Discounted the claims or efforts of a parent who is trying to quit smoking. The reasoning is that the parent may be more motivated by a desire to win the custody fight than a genuine concern for the health and welfare of the child.
• The smoking habits of grandparents, significant others and any other person who has frequent contact with the child may be a factor in a child custody decision.

One note of caution about parents who smoke and willfully and knowingly expose their children to secondhand smoke:

• The language and definitions used in the child abuse and neglect laws of some states may be interpreted so that parental smoking around children is considered a form of child abuse. It is possible that professionals, like psychologists, pediatricians or certain care-givers, may be required to report a child suffering from symptoms caused by exposure to secondhand smoke to the appropriate child protection agencies.

If you smoke, here are some steps you can take to reduce the effects of your secondhand smoke on your children. They could also decrease the detrimental effect your smoking could have on the outcome in a divorce, modification, or termination of your parental rights action:

• Always smoke outside and wait a while after you smoke a cigarette, cigar or pipe before entering your home.
• If you must smoke in your home, restrict it to one room away from your children. Always have a window open for cross ventilation and use a good air cleaner with a clean air filter.
• Never smoke in a car when your children are present. Smoking with a window open or cracked is not sufficient.
• Take affirmative steps to avoid places where your children will be exposed to secondhand smoke.
• Quit smoking. If you need help to quit, visit QuitSmoking.com.

For more information and the sources for the facts in this article, see reports issued by the Centers for Disease Control, The Environmental Protection Agency, The American Academy of Pediatricians, and the American Lung Association.

Legal resources can be obtained from the Action on Smoking and Health (ASH), the St. Louis University Public Law Review, and the Marquette Law Review among several others