Divorce

Montana Annulment…The Myth, The Legend

It may be hard to believe, but the Hollywood television and film industry is not the most reliable source for Montana legal information.  Still, if I had a dollar for every client that wondered if they can get an annulment like that guy in “The Hangover,” or pretend the marriage never existed like the cast of “The Young & The Restless,” I wouldn’t need to work.  Unfortunately (or perhaps fortunately), Montana divorce laws were not created by screenwriters.

Most everything you hear about annulment of marriage in Montana is a myth and the reason for that is the Montana Legislature did away with traditional annulment laws years ago.  Instead, some Montana marriages may be terminated by a “declaration of invalidity,” which essentially means the marriage is not valid and so does not exist.  Even with a declaration of invalidity as an option, Montana divorce laws favor the dissolution process as a means to dissolve a marriage.  For that reason, declarations of invalidity can be hard to come by and are only granted in certain situations.  For example, a marriage would likely be invalid if a party was under 16 years of age at the time of the marriage, if a party lacked the mental capacity to consent, or if a party was forced into the marriage.

One of the most popular annulment myths is that if you have been married less than a year, there is an annulment waiting with your name on it.  This myth could not be further from the truth, as the duration of the marriage has nothing to do with a declaration of invalidity.  However, there are certain situations in which a declaration of invalidity must be sought within a certain time frame.  For example, if a person seeks a declaration of invalidity due to the lack of capacity to consent due to mental incapacity or infirmity, they must seek the declaration within one year after they obtained knowledge of the condition.

So, the next time you are considering jumping into marriage Hollywood-style, remember that it cannot always be undone in the same fashion.

Retirement Planning in a Montana Divorce

For many couples divorcing in the Kalispell area, retirement accounts are the largest or the only major asset available for distribution.  During property settlement negotiations, some clients end up being awarded a portion of their spouse’s 401(k) or pension plan.  However, without taking the necessary legal steps, an ex-spouse’s employer could still pay out the benefits to the ex-spouse, leaving the other with little or nothing.

A Qualified Domestic Relations Order, commonly called a “QDRO” (pronounced “quadrow”), can often be used to protect your interest in a pension plan or retirement account.  A QDRO is a domestic relations order that creates and/or recognizes the existence of an alternate payee’s right to recieve a portion or all of the benefits payabel under a qualified retirement plan.   A QDRO essentially instructs your spouse’s pension plan how to pay the retirmenet benefits and to whom.

QDROs only apply to plans covered by the Employee Reitremen Income Security Act (ERISA) and that are IRS tax-qualified.  Some examples of those note covered by ERISA include government pensions, miliratry pensions and most deffered compensation plans.

Domestic Relations Orders do not become “qualified” until they have been approved by a retirement plan’s Plan Administrator and the court.   Many retirement plans have standard QDRO forms; however, I encourage anyone who may be entitled to a portion of a retirement account to meet with an attorney show has QDRO experience to ensure that all the related issues are addressed.

Information for those considering divorce in Kalispell and the greater Flathead Valley

On March 6, 2010 a panel of local experts will provide a free seminar on the emotional and legal aspects of troubled marriages at the Whitefish Public Library, from 9:00 am until 12:00 pm. “MARRIAGE IN CRISIS: Resources For Making Difficult Changes” is sponsored by the HeartWorks Mediation Center in Whitefish.

A variety of free professional services will be available to registered attendees in the afternoon. Experienced family law attorneys and therapists will be offering free sessions of 15-20 minutes to those who register in the morning. These brief sessions will provide an opportunity to make initial assessments and get specific answers to legal questions. It is recommended that participants write down their questions in advance.

The panel includes District Court Judge Katherine Curtis, Columbia Falls psychotherapist Anne Scott-Markle, Whitefish family mediator Brian Muldoon, and Marybeth Sampsel, a Kalispell divorce lawyer. Presenters also include Kandy Satterlee of the Self-Help Law Center and Jolie Fish, Director of Family Court Services.

“We have asked some of the leading local experts to provide the kind of information that people need when contemplating divorce,” said Muldoon, the founder of the HeartWorks Mediation Center. “These issues include the psychological and emotional aspects of divorce as well as the legal part of the process. Getting the right information is a good place to start.”

FOR FURTHER INFORMATION CONTACT:

Brian Muldoon

HeartWorks Mediation Center

525 Railway Street

Whitefish, MT  59937

406-862-9292         or      heartworks@montanasky.com

Libby MT Divorce Lawyer

One Aspect of my practice that surprises my clients is that I often represent clients in Libby, MT and the rest of Lincoln County.  Understandably, being over an hour away, it may seem like this would be a major inconvenience.  However, the nature of Montana divorces and family law cases means that most of them settle without ever setting foot inside a court room.  That, combined with the advantages and flexibility of technology like email, phone conferencing, and computer scanners allows me to work with out of town clients as easily and productively as those located more locally.

The end result is that many of my Libby clients see little or no extra charge.  Of course, each case is unique and, as I’ve discussed before, I make no guarantees or predictions about final costs.  That being said, many of my clients are from Libby and have decided that hiring me was their best option.

Whether you are from Libby or anywhere else in Montana, if you are facing divorce or any other family law issues, please consider calling myself or another attorney in order to discuss your case.

Kalispell Divorce Resources

For those of you that are looking into filing for divorce in Kalispell or the surrounding areas of Columbia Falls, Whitefish, Bigfork, Libby or Polson, there are a number of local resources that may help you get the ball rolling.

1. Montana Legal Services Association

The Montana Legal Services Association Helpline is a great option for low-income people living in Montana.   You can call between the hours of 7:30 a.m. and 5:15 p.m. Monday through Friday; or 9:15 a.m. through 12:45 p.m. on Saturdays.  For more information on the Helpline visit http://www.montanalawhelp.org/Program/575/RTF1.cfm?pagename=helplinecall

2.  MontanaLawHelp.org

For those Kalispell natives thinking about handling their divorce on their own, MontanaLawHelp.org offers free fill-in-the-blank dissolution and parenting plan forms.  While I highly recommend all people looking into filing for a dissolution or parenting plan at least meet with an attorney to discuss their legal options, the Montana Law Help forms can keep the overall cost of your divorce down.

3.  Flathead County Self-Help Law Center – Kalispell, Montana

If you are able to visit the Flathead County Justice Center in Kalispell, you can find the Self-Help Law Center on the third floor.   The Self-Help Law Center is open from 9:30 a.m. to 5:00 p.m. on Monday, Tuesday, Thursday and Friday.  Kandy Satterle is the resource officer on staff and can help you locate the documents needed to file on your own.

4.  State Law Library of Montana

Sample dissolution and parenting plan forms are also available online at the State Law Library of Montana website.   http://courts.mt.gov/library/topic/default.mcpx

Safety Alert – Internet and Computer Safety

SAFETY ALERT – INTERNET AND COMPUTER SAFETY. When visiting this blog or any other website concerning domestic violence, it is possible for your abuser to find out you have been getting information. If you are in danger, please try to use a computer that someone abusive does not have direct or remote access to. Here are some suggested precautions from the MCADSV website:

  • If you think your activities are being monitored, they probably are.  Abusive people are controlling and want to know your every move.  You don’t need to be a computer programmer or have special skills to monitor someone’s computer and Internet activities – anyone can do it and there are many ways to monitor with programs like Spyware, keystroke loggers and hacking tools.
  • It is NOT possible to delete or clear all the “footprints” of your computer or online activities.  If you are being monitored, it may be dangerous to change your computer behaviors such as suddenly deleting your entire Internet history if that is not your regular habit.
  • If you think you may be monitored on your home computer, be careful how you use your computer since an abuser might become suspicious.  You may want to keep using the monitored computer for innocuous activities, like looking up the weather.  Use a safer computer to research an escape plan, look for new jobs or apartments, bus tickets, or ask for help.
  • Email and Instant/Text Messaging (IM) are NOT safe or confidential ways to talk about the danger or abuse in your life.  If possible, please call a hotline instead.  If you use email or IM, please use a safer computer and an account your abuser does not know about.
  • Computers can store a lot of private information about what you look at via the Internet, the emails and instant messages you send, Internet-based phone and IP-TTY calls you make, web-based purchases and banking, and many other activities.
  • It might be safer to use a computer in a public library, at a community technology center (CTC), at a trusted friend’s house, or an Internet Cafe.

If you are in danger, please:

  • Call 911
  • Call your local hotline
  • Call a national hotline
  • US National Domestic Violence Hotline at 1-800-799-7233 (SAFE) or TTY at 1-800-767-3224
  • US National Sexual Assault Hotline at 1-800-656-4673 automatically connect you to a local US rape crisis program near your phone number’s area code.
  • US National Teen Dating Violence Helpline at 1-866-331-9474

Remember that “corded” phones are more private and less interceptable than cordless phones or analog cell phones.

Be aware you may not be able to reach 911 using an Internet phone or Internet-based phone service.  So you may need to be prepared to use another phone to call 911.
Contact your local domestic violence program or shelter to learn about free cell phone donation programs.

The Benefits of Negotiating a Parenting Plan in Montana

As a Kalispell divorce lawyer, I can tell you that for many divorcing Montana couples, negotiating a parenting plan is the most financially, emotionally and physically exhausting part of the process. Furthermore, a lengthy battle over a residential schedule can result in long-term consequences for the minor children involved.

Parents who are able to negotiate a parenting plan for their children without significant court involvement will often reap the benefits. First, by avoiding a trial or hearing on parenting, a parent will likely maintain more control over the future of their relationship with their children. Additionally, divorcing couples may find that they are able to have an amicable relationship moving forward when they have avoided the heated battle of a trial. And perhaps most obviously, a divorce client will likely save thousands of dollars in attorney fees and court costs.

The best way to prepare yourself for negotiating a Parenting Plan is to set aside the negative feelings you have towards your soon-to-be-ex-spouse and focus on what is in the best interest of your children. If you are unable to reach an agreement together, consider attending mediation.

A Child’s Guide to Divorce

One of the most difficult tasks for a divorcing couple here in Motnana is breaking the news to their minor children. It can be tricky to explain such an adult concept to children, particularly when many divorcing couples cannot explain to each other what went wrong. Luckily, there are many resources aimed specifically at children that parents can utilize during this difficult time.

KidsHealth.org has an online “Kid’s Guide to Divorce” that explains divorce in age-appropriate terms and stresses that children are not the cause, nor can they be the savior, when a couple decides to divorce. The site has additional information for children who may be living with a new stepparent or will be moving away.

There are also several children’s books for parents and children to read together while coping with divorce. Most of the books provide a simple, clear way to explain to children that they are still loved by both parents. I recommend the following:

  • Dinosaurs Divorce: A Guide for Changing Families by Marc Brown
  • It’s Not Your Fault, Koko Bear by Vicki Lansky
  • Two Homes by Claire Masurel
  • Standing on My Own Two Feet by Tamara Schmitz

100% Free Legal Advice!!! A warning…

In the age of the internet, information and answers seem to be one click away. But if you are a legal consumer attempting to get their questions answered – BEWARE! Sites are popping up all over the internet that promise free legal advice, 3 Step Divorces, and an answer to every legal question you have ever had. While I encourage individuals to consider all of their options, it is impossible for any lawyer to answer specific legal questions without more information than you can provide on those sites. You will truly get what you pay for.

There is a reason that most lawyers, including many of those in Kalispell, Whitefish, Columbia Falls, Bigfork, Libby, and Polson charge for an initial consultation. In order to answer your specific questions, they must first gather a great deal information regarding your finances, family and children and incorporate it into their analysis. You will usually find that a good consultation takes time, because the lawyer must get all of their questions answered before they can answer yours.

This advice also applies to those individuals that call up a lawyer for a quick piece of information. Remember that you cannot get adequate advice if you do not give adequate background information. It is worth your time and money to make sure you go into a divorce, or any other legal matter, with all the facts.

IRS Procedure Changes Tax Treatment of Dependents

Generally speaking, the IRS does not allow the non-custodial or parent with the least number of parenting time (in Montana divorce terms) to claim the children as dependents for the purposes of the dependency tax exemption. If a non-custodial parent plans to claim a child, Internal Revenue Section 152(e) requires the custodial or parent with the greatest number of days of parenting time to provide a written declaration that he or she will not claim the child as a dependent for a given tax year. The non-custodial must provide a copy of the declaration to their tax return. For those in Montana, attaching a copy of the Parenting Plan that deals with claiming the tax exemption may suffice.

In August 2008, the IRS released a new procedure that will treat a child as a dependent of BOTH parents under certain circumstances, particularly those relating to medical expenses, medical insurance and certain employee benefits. Internal Revenue Procedure 2008-48 allows a parent to claim a child as a dependent (with the declaration from the other parent) for the following purposes:

  • Exclusions from gross income for employees for certain employer-provided medical reimbursements, including expenses incurred by employees for medical care of a spouse and dependent children (Code Section 105(b));
  • Exclusions from gross income for contributions made on behalf of employees, their spouses and dependent children to an accident or health plan (Code Section 106(a));
  • Exclusions from gross income for “no-additional cost services” that an employer provides to employees, their spouses and dependent children as fringe benefits or qualified employee discounts (Code Sections 132(a) and 132(h)(2));
  • Deductions for medical expenses, including medical expenses of a taxpayer’s spouse or dependent children (Code Section 213(a)); and
  • Exclusions from gross income for distributions from Archer Medical Savings Accounts and Health Savings Accounts that are used to pay for qualified medical expenses of the beneficiary, the beneficiary’s spouse and dependent children (Code Sections 220(f)(1) and 223(f)(1)).

For more information, speak to a tax your tax professional.