In Divorce, It Pays to Be Nice
When trying to influence someone, as in a divorce negotiation, respect and politesse go a long way.
What Hostage Negotiations Teach Us About Divorce Negotiations
As it turns out, a divorce negotiation is a lot like a hostage negotiation. Just not in the way you probably think. I never would have thought about that. But, a recent interview with a former FBI hostage negotiator in Men’s Journal made it apparent. Gary Noesner’s interview in the April issue of the magazine gave six keys to effective negotiation under high stress situations. Not coincidentally, these are the same rules that good collaborative attorneys and mediators follow when negotiating a divorce settlement. Anybody going through a divorce would do well to keep these in mind, and to find an attorney who understands these techniques:Autonomy Buckets
One frequent topic of co-parenting discussions is how much autonomy each parent will have when making decisions about the children. How will decisions be made by the parents to benefit the children now that interaction and communication between parents is less frequent and maybe more difficult?
Is Your Divorce Attorney Wearing Two Hats?
Some clients wonder why their collaborative divorce attorney cannot represent them in court if collaborative does not resolve their case. Some clients find it difficult to find the nerve to talk to one divorce attorney; the thought of having to meet two of them is daunting.
One reason is that North Carolina law requires a collaborative divorce attorney to withdraw if and when a lawsuit is filed.
Flexibility and Predictability in Your Separation Agreement
There is a point in many of my divorce cases, whether collaborative, mediation or otherwise negotiated, at which the parties ask, “How many of these details do we need to figure out, and how many can we leave open?”
The general answer is that there are some items that need to be conclusively determined, but many that do not.
But, the more useful answer is that what you nail down in detail and what you leave open to future determination or adjustment is largely a matter of personal preference.
Knowing Your Divorce Attorney’s Bias
Everybody has a bias.
That’s not bad or wrong. It just is. No one can be completely objective. (Don’t believe me? Read “Thinking, Fast and Slow”!)
The challenge, then, is to understand the bias so that you know how to more accurately interpret information from that person.
Nowhere is this more important than in choosing and communicating with your divorce attorney. Contrary to popular belief, divorce attorneys are people (at least that’s my working hypothesis). And, as such, they have biases. One of your jobs as a discriminating client is to figure out what that bias is, and then interpret the advice, information and counsel you get from your attorney accordingly.
Therapist Note: Legal Issues of Trial Separations
For mental health professionals, temporary separations can be a useful therapeutic tool for stressed marriages. But, many marriage counselors are unaware of the legal ramifications that even seemingly temporary separations can produce.
Nonetheless, there are potential legal issues involved, and mental health professionals would do well to have a very basic understanding so that they can advise clients to seek legal advice if appropriate. This post describes the most common complications.
Passing the Retirement Buck to your Kids
If you are diligent enough to have saved for retirement, then dividing retirement assets can be one of the trickiest parts of divorce planning. There are countless types of retirement plans, federal and state laws that apply to different kinds of plans and tax consequences that must be considered in dividing retirement accounts.
But, perhaps more important is the overall question of whether each spouse will be adequately provisioned in retirement.
It is not uncommon for one spouse to have substantially more retirement savings than the other. This is especially the case where one spouse has worked throughout the marriage while the other has not.
In some cases the spouse with the greater retirement savings resists dividing the funds. The most common reasoning for this is “I spent x years working my tail off to get that retirement. I shouldn’t have to give any of it away.” I think we can all understand why someone might feel that way. After all, sometimes retirement savings feel like the only tangible reward that you’ve got to show for decades on the hamster wheel.
Nonetheless, there is at least one important fact to consider if you have kids and your spouse is low on retirement savings: If your spouse cannot afford to support themselves in retirement, then it may well fall to your children to support them.
Children are not legally required to financially provide for parents. But, many adult children feel some obligation to financially support parents who cannot provide for themselves. At the very least it can be a significant stressor to know that a parent is not financially secure, or cannot afford the care that they need.
You may not feel a need to ensure that your ex-spouse is financially secure in retirement. You may or may not be legally required to do it. But, when considering your options and what’s important to you, you may want to take a longer view of the situation. If you and your spouse are not able to secure retirement incomes down the road, then you may simply be passing the buck to your children.
Obviously, the facts of any given case will dictate whether this is an issue. But, the point is that a decision to not provide for your or an ex-spouse’s retirement in some way can negatively impact your children. And, that is a ripple effect of divorce that few people want to create.
Authorization of Medical Care for Children
Parents, have you ever wondered how your child will get medical care when they are being watched by a babysitter, grandparents or other child care source? Have you ever gone on a business trip or vacation (I know, dream on) without the kids and wanted to make sure that the person keeping your kids could get them medical care if something happened?
Well, fortunately, if you live in North Carolina, then the following statute and form allow you to authorize someone else to consent to health care for your child in those situations. It is important to note that your signature has to be notarized, so make sure you take care of that if you are going to rely on the form. But, this form provides an easy and effective way to make sure your kids can get medical care when you are not around. You’ll need to give a properly executed copy to the person caring for your child so that they can provide it to the doctor, hospital or other medical facility.
§ 32A‑34. Statutory form authorization to consent to health care for minor.
The use of the following form in the creation of any authorization to consent to health care for minor is lawful and, when used, it shall meet the requirements and be construed in accordance with the provisions of this Article.
“Authorization to Consent
to Health Care for Minor.”
I, ____________, of ____________ County, ____________, am the custodial parent having legal custody of____________, a minor child, age______, born________, ____. I authorize____________, an adult in whose care the minor child has been entrusted, and who resides at____________, to do any acts which may be necessary or proper to provide for the health care of the minor child, including, but not limited to, the power (i) to provide for such health care at any hospital or other institution, or the employing of any physician, dentist, nurse, or other person whose services may be needed for such health care, and (ii) to consent to and authorize any health care, including administration of anesthesia, X‑ray examination, performance of operations, and other procedures by physicians, dentists, and other medical personnel except the withholding or withdrawal of life sustaining procedures.
[Optional: This consent shall be effective from the date of execution to and including____________,_____].
By signing here, I indicate that I have the understanding and capacity to communicate health care decisions and that I am fully informed as to the contents of this document and understand the full import of this grant of powers to the agent named herein.
(SEAL)
Custodial Parent Date
STATE OF NORTH CAROLINA
COUNTY OF
On this ________ day of__________, ____, personally appeared before me the named_________, to me known and known to me to be the person described in and who executed the foregoing instrument and he (or she) acknowledges that he (or she) executed the same and being duly sworn by me, made oath that the statements in the foregoing instrument are true.
Notary Public
My Commission Expires:
Top 10 Traps of Handling Your Own Divorce Settlement
Many people want to negotiate their separation and divorce without using an attorney. The reasons typically revolve around saving money and/or the fear of evil attorneys creating an unnecessary fight.
I am all for people resolving their own disputes whenever possible. But, in divorce, there are traps waiting for people who want to do it themselves. Here is a list of 10 the most common traps:
1. Failing to account for capital gains taxes
A lot of people just divide up assets or debts without regard to this issue. This can provide a nasty surprise if capital gains taxes reduce the value of the assets that seemed “equal” when you agreed on them.
2. Failing to structure financial terms to avoid taxes
Giving money or assets to your ex-spouse can bring on tax liability. Withdrawing retirement funds can trigger tax liability. Divorce situations can be excluded from some kinds of taxes, but only if handled correctly.
3. Retirement account division
Dividing these accounts is complicated. There are federal, state and/or tax laws that must be satisfied to avoid bad surprises down the road. Special orders from a court may be required to divide up a retirement account. Also, planning for what happens if the owner of the retirement account dies after separation, but before the account is divided is complex, but crucial.
4. Small business and family business ownership
Small business and family owned businesses present special considerations for a divorcing family. Failing to properly address these issues can lead to future problems with ownership, liability on business debts and other issues impacting the business.
5. Planning for income changes in support obligations
I have talked to many people who tell me that they handled their own separation agreement and agreed to pay “x” dollars a month but now cannot pay it because they lost a job or took a pay cut. This is a great way to end up in court and financial trouble.
6. Agreeing to obligations that are not legally required
You may inadvertently agree to do things that no court could require.
7. Agreeing to things that are not enforceable
You may depend on your spouse’s agreement to do something only to later discover that you cannot actually require them to do it under the law of your state.
8. Failing to formalize your agreements properly
Creating a legally enforceable divorce settlement agreement in North Carolina is not as simple as a handshake or even a just a written signed agreement. If it is not done correctly, your agreements may fail.
9. Agreeing to numbers without budgeting or planning
Too many people agree to financial arrangements without having the slightest idea of how those arrangements play out long term, or sometimes even short term.
10. Failing to structure spousal support for tax purposes
There are very specific tax laws and state laws that apply to spousal support payments. Failing to structure spousal support payments appropriately can lead to surprising tax and legal ramifications years after you thought your divorce was put to bed.
If you are facing separation or divorce, then consider consulting a qualified family law attorney before you finalize an agreement. An ounce of prevention is often worth a pound of cure.