Does Smoking Lead to Divorce?

An article from Australia’s Brisbane Times suggests that marrying an opposite is more likely to lead to divorce. Australian National University tracked the relationships of 2,500 couples and found the factors that increased the likelihood of marriage breakdown included differences in age, substance use, work, and desire for children.

The risk of divorce doubled in couples with a significant age difference, particularly in those where the husband was nine or more years older than the wife or the husband is two or more years younger than the wife.
For those couples where one is a smoker and the other is not, the study found the relationships were 75-90% more likely to end than couples that were both non-smokers.

Surprisingly, factors that were not important included differing education levels, religious beliefs and country of birth.  This article made me wonder whether Montana’s recent ban on smoking will have an impact on the divorce rate.  Given the economic conditions we are seeing around Kalispell and the rest of the state, I have trouble imagining that it will make much of a difference.

See the full article at http://news.brisbanetimes.com.au/breaking-news-national/opposites-more-likely-to-divorce-study-20090713-dihh.html.

When Can Little Stevie Choose Which Parent He Wants to Live With?

There are plenty of urban myths about divorce laws, but this one generally takes the cake. In Montana, judges in divorce cases never “let” a child decide which parent they want to live with. However, when considering and determining a parenting plan that is in the best interest of the minor child, judges consider a variety of factors, which may include the wishes of the child. See Montana Code Annotated § 40-4-212. Because the wishes of the child are only one of the factors, the judge may not rule the way the child wants if other factors indicate it may not be in their best interests. Imagine a scenario where a child wants to go live with a parent that has no rules and no curfew. Chances are a judge might find that, although the child desires that living situation, a more structured home environment would be in the child’s best interest.

Judges despise having children testify in court and they rarely allow it. They are very sensitive to children being pulled between parents in family law cases and forcing a child to “choose” can only complicate things for a child. Instead, a judge might appoint a professional to represent the child’s wishes in court. Examples of professionals used in Montana courts are therapists/counselors, an attorney for the child or a Guardian ad Litem (GAL). If a professional is appointed, they will meet with the child, perhaps even do a sort of investigation, and report their findings to the court. One of the downsides to involving professionals is that it often increases the cost of a divorce, as a therapist, attorney or counselor will need to be paid. Many jurisdictions have investigative services available at little to no cost. For example, in Flathead County, Montana, Family Court Services may be appointed by the court to investigate and report on the parenting situation.

Polson Divorce Attorney

Although my office is located in Kalispell, I often represent clients in Lake County at the District Court located in Polson, MT. In general, I have found that the distance has presented little to no obstacle to my representation.  So much of the work I do is through phone calls and email, that I am able to handle divorce cases in Polson nearly identically to those here in Kalispell.

In my opinion, family law is particularly well suited to this type of arrangement because so many cases settle without a trial.  I’ve been very clear before that I believe in most cases, settlement is the best option.  Because I don’t have to travel frequently to Polson for Court hearings in a divorce case, most clients find me a cost effective solution.

If you live in Lake County and are in need of a divorce attorney, please call me at 406-752-6373 to schedule a consultation today.

When Health Care Costs Promote Divorce

The New York Times ran an article discussing a happily married couple who divorced to avoid financial ruin. Facing mounting health care costs from the husband’s degenerative illness, the couple made a practical choice to save some assets by ending their marriage. The husband has early-onset dementia, with a prognosis of degenerative mental function until he will ultimately need to be institutionalized. On the advice of a social worker, his hospital, and a divorce lawyer, his wife filed for divorce. Instead of losing all their join and separate assets as his health care costs gradually consume all available assets, she will be able to protect some of them. The wife still lives with her former husband, but legally she is no longer responsible for his medical bills.

I have not heard of this happening in Montana, but it is not beyond imagination. With health care costs sky-rocketing, it may be only a matter of time before Montana couples face the impossible choice described above. This serves as a good reminder that while divorce is generally the result of an unhappy marriage, it is a legal tool with many different uses.

Settling Your Montana Divorce

Most divorce cases I handle end in settlement. This is a good thing. As I often tell my clients, as difficult as it may be for you to reach an agreement with your spouse, such a result is far better than the judge (a total stranger) making all the decisions. For this reason, settlement conferences and mediations are a vital part of any divorce case I handle. With that in mind, here are some tips I encourage clients to keep in mind when we go in to settlement talks:

  • In order to reach a settlement, each party must be willing to make concessions. You have to give something up in order to gain something else.
  • It is unreasonable to expect a party to settle for a property division that represents their worst possible outcome at trial. Likewise, it is unreasonable for a party to receive what represents their best possible outcome at trial.
  • If a case is not settled, then each party gives up all control over the outcome of the case. Intimate and important decisions about the functioning of your family will be decided by a total stranger.
  • If a case is not settled, then each party gives up the chance to get divorced immediately and faces increased time (and cost) while waiting and preparing for trial.

Montana Collaborative Divorce

A growing trend among divorce attorneys, and especially clients, is collaborative law. The Texas Collaborative Law Blog gives a terrific overview of the collaborative law process as it applies to divorces and other family law issues:

Collaborative Law is a dispute resolution system that permits the parties to a divorce or family law issue to settle out of court in a respectful, private and mutually agreeable manner. The parties each have their own attorneys, but they agree at the outset to not go to court. Instead, they set goals, gather information, create solutions and reach agreements in a series of relatively short meetings which they schedule themselves. They control the timing, the subjects and, most importantly, the solutions. Courts are used to formalize the agreements once the parties have worked things out.

One of the reasons why Collaborative Law works is that once the Collaborative participation agreement is signed by the parties and their attorneys, the attorneys are required to withdraw from representing their clients if the process fails to reach an agreement and someone wants to go to court. Those attorneys cannot represent those clients in a contested matter in court. That creates a huge incentive for both attorneys and clients to stay with the process and look for other solutions when the going gets a little tough. In a regular litigation case, the easy cop-out is for one or both parties to tell the other party that they will just let the judge decide if the other party won’t agree to an offer. That can’t be done without costing both parties a lot of money and without the attorneys losing business. Everyone loses by that alternative, so everyone generally keeps trying to find an acceptable solution.

The promise of helping a divorcing couple avoid litigation and court intervention is appealing to many clients. Add to that the fact that collaborative divorces may be less expensive, and it is easy to see why this is a growing trend. However, I stress that collaborative divorces are not right for all Montana couples. But, it is always something I am willing to discuss with clients. If you are interested in learning more about collaborative divorce, please call me today to set up an appointment at (406) 752-6373.

Postnuptial Agreements Becoming More Common

More and more often, married couples are executing postnuptial agreements after the wedding. Like the better known prenuptial agreement, a postnuptial agreement sets out the couple’s rights, obligations, and liabilities upon the termination of the marriage be death or divorce. The difference is that a postnuptial agreement is executed sometime after the wedding where a prenuptial agreement must be done before the marriage.

Montana specifically allows married couples to contract with one another, meaning that postnuptial agreements are allowed by statute in the state. Montana couples can include provisions for division of property or even spousal support in the event of death. If you are considering having a postnuptial agreement created, it is important to work with a lawyer familiar with family law and all the legal considerations that go along with divorce.

Montana Divorce Terminology

In Montana, divorce is known as dissolution. The name change makes no real difference, and you will often hear the two terms used interchangeably. But when a married couple seeks to legally end their relationship in Montana, the process is known as dissolution.

The reasons for this date back to a restructuring of the laws surrounding divorce which were intended to make the process less adversarial. In most lawsuits, the general theory is that two parties competing against each another will produce the best outcome. The Montana legislature believed that this was not a good approach divorces and changed the laws in an attempt to make things less confrontational.

For example, in most civil lawsuits the party bringing the suit is known as the plaintiff and the party being sued is known as the defendant. However, in a divorce case the party who initiates the process is called the Petitioner and their spouse is called the Respondent. Again, the idea is to create a process where the parties are not opposed to one another, simply working from different sides to reach a common goal.

For the purposes of this blog, and often when talking with clients, I try to use divorce, the more common term. But remember, if your Montana divorce lawyer says dissolution, it really means the same thing.

A House Divided

The martial home is often the most valuable asset to be dealt with in a divorce. Generally, one of three things can happen to the martial home as part of the divorce: it is sold on the open market, one of the spouses buys out the other spouse’s interest, or one spouse is allowed to occupy the home for a period of time, until, for instance, a teenage child graduates from high school, and then the home is sold.

If the home is sold, the value of the home is distributed. The value is the net proceeds remaining after all the costs associated with the sale have been paid.  These costs include transfer taxes, broker’s commissions, the costs to satisfy the outstanding mortgage and, of course, legal fees.

If one spouse remains in possession of the home, the property needs to be appraised.  The appraiser, by comparing the particular home to others in similar condition and location, offers an opinion of the property’s value. From there, the parties or the Court how those proceeds are to be divided equitably.

Top Ten Tips When A Montana Divorce is Imminent

Whether you have made up your mind or fear that divorce papers will be coming your way, the following will help prepare you for the bumpy road ahead.

1. Meet with an Attorney

I highly recommend you speak with an attorney before you file for divorce or if you are concerned your spouse may be planning to file. It is never too early to arm yourself with vital information to get you through the divorce process. Make sure you find out what your rights and obligations are before the ball gets rolling.

Many divorce attorneys in Montana and the Flathead Valley will meet with you for a free consult. Remember, you should be able to have a confidential conversation during the consultation.  But make sure you address this with the lawyer.

2. Set Aside Some Money

Though there is not always time, I encourage all clients to start setting aside the funds to survive for a couple of months without their spouses financial assistance. Often times, a spouse may stop paying household expenses or bills during divorce proceedings. You may also need to set aside additional money for an attorney’s retainer fee, a security deposit on a new residence, moving costs and the like.

3. Build Your Credit

Take the steps to build or reestablish your individual credit by getting their own credit card in their own name. This can help pay an attorney’s retainer fee or cover household expenses if you have not had time to set aside some money before filing for divorce.

4. Copy, Copy, Copy!

All too often, clients wait until it is too late to get their financial documents in order. Make sure you keep your own individual copies of past tax returns, wage statements or pay stubs, insurance information, household expense information, mortgage documents, financial liability information, etc. If you have children, you should also make copies of birth certificates, social security cards and insurance information.

In Montana divorce proceedings, both parties are required to disclose their income, expenses, assets and liabilities. It is significantly easier to disclose the information if you have copies of all the requisite documents.

5. Inventory

Make a list of all the major items in your marital residence such as jewelry, artwork, furniture, recreational vehicles, appliances, etc. If you recall any information about the items, make a note of it. For example, if you have a piece of jewelry you inherited from your grandmother, make note on the list. In a Montana divorce, inherited items, gifted items and premarital items are treated differently; therefore, those details are important!

6. List Expenses

Haven’t balanced that checkbook in a few months? Now is the time to dust off the calculator and determine where every penny goes. Figure out a manageable budget for after the divorce is filed.

7. Determine Your Spouse’s Income

While you still have access to joint bank accounts and tax returns, gather as much information as possible about your spouse’s income. Make copies of pay stubs and bank statements and keep them for your file.

8. Evaluate Your Income

Determine if you could make more money and what it would take to do so. Could education or job training help? If so, how long would it take and what would be the approximate cost? If you have small children, can you work full-time and obtain daycare for them at a financially feasible rate?

9. Put Your Children First

Remember that your children’s needs and wellbeing should always be your first concern. Keep their lives as routine as possible and stay involved in their activities as much as you can. Don’t bad-mouth your spouse to your children, don’t argue in front of them and don’t use them as your psychologist, attorney or counselor. Consider finding a counselor or therapist for the children before you have filed for divorce.

10. Take Care of Yourself

While it is always important to put your children’s needs first, it is imperative that you take care of yourself before, during and after the divorce process. Filing for divorce in Montana should never be taken lightly and it can be mentally, emotionally and physically exhausting. Consider seeing a counselor to work through your feelings before you file for divorce. Prepare yourself for what can often be a long, drawn out process by eating right, getting plenty of sleep and exercising regularly.