Mickie Cioccia

To Separate or Not

Beginning of the End, or a New Beginning?

It merits saying up front that separation, physical or legal, does not always lead to divorce. Sometimes separation can be a time of forgiveness and renewed commitment. Many times, couples will separate in hopes of saving a marriage. Sometimes, this can work. After all, just getting distance from a painful, antagonistic situation can provide you with enough perspective to come back together weeks or months later and sort things out.
One couple we know did just that. The man, a newspaper reporter, left his wife in Boston and went on assignment in Russia for a year. Their marriage had been on the rocks, but during the year apart, the two developed an e-mail correspondence that brought them new intimacy and understanding. When they came back together after 12 months apart, they were ready to really commit to the relationship and even decided to start a family.
In other marriages, separation — as opposed to divorce — becomes a permanent way of life. We know of a couple who stayed legally separate but married for some 25 years. (Indeed, they exist in that state to this day.) The woman, happily living in a townhouse in Miami, plays tennis during the day and spends evenings with her lover, another woman. The man, who enjoys the city life in a Manhattan penthouse, runs a successful business and has pursued a series of monogamous relationships that fell apart, one by one, when he refused to commit to marriage. He had the perfect excuse. He was not yet divorced from his estranged wife. For this couple, divorce holds nothing positive. It would erode their joint fortune and diminish the money available to their children (they had two). In the man’s case, getting a divorce would only make him available for remarriage, an idea he hardly relishes.
This estranged couple had their relationship formalized in a Separation and Property Settlement Agreement drafted by their attorneys. For them, it was the best route to new and separate lives.

Preamble to Divorce

As the name implies, separation can be the first step along the journey to separate lives. Not quite permanent or irrevocable, separation enables the two individuals to get a taste of what it would be like to exist apart — to manage separate households, separate finances, and separate selves.  Most of the time, separation is a preamble to divorce — even if that was not the original intent. A Dallas couple we know opted for a long-distance relationship as a means of gaining perspective. The decision to separate was facilitated when the woman was offered a job in Des Moines. Unfortunately, her husband began feeling so resentful when she really left way that, ultimately, he could not accept her back into his life. He felt this way despite the fact that he was the one who had encouraged her to leave in the first place. Another example involves a woman who married the first boyfriend she ever had right after college. As the marriage went on, he became increasingly critical and angry. (Psychological abuse is the term that comes to mind.) Yet because she’d never really been alone, she could not imagine life without him. Finally, through therapy, she was able to take what she thought would be a short hiatus from the marriage. She never imagined that during this break she would experience a return of self-esteem, enthusiasm, and even joy. This “brief” separation was just what she needed to realize she could go it alone over the long haul.  As a step before divorce, physical separation has emotional and legal implications that you need to understand. Decisions made during separation often become stamped in stone, and anyone separating without the appropriate strategizing and protections can suffer unpleasant repercussions for years. Indeed, the legal arrangements made for separation often cannot be renegotiated for the divorce; those who decide to let things go, believing they will have another chance at a fairer deal later, are sorely disappointed most of the time.  Remember that the emotional tenor of your break-up and, by extension, your separation can impact the legal outcome of your divorce. Separation is such a naturally turbulent and overwhelming period that it lends itself to rash decisions driven by emotions likeguilt and anger. In a cooler moment, you may have made a more strategic deal, but you will not generally have the luxury of negotiating twice. If you are separating, you should attend to the fine print of your future life now.  There are couples who treat separation casually and live apart without any formal legal agreement. If you and your spouse are quite certain that your separation is temporary, and that you will be using the time to reconcile, a casual attitude may work well. You can date your spouse, even have sex with your spouse — because as far as you are concerned, divorce is not in the cards.
But please be careful. If you have filed for a fault divorce, you may lose grounds for divorce in your state if you date or have sexual relations with your spouse during a period of separation. If separation is likely to be the first step in your journey to single status, we suggest you enter it seriously and formally — with a signed agreement and full awareness of the potential errors, many of them impossible to reverse later on.

Red Alert: If you enter separation believing it is just what you need to heal your marriage, you may be kidding yourself. All too often couples who separate just to “get a little distance” find they like the distance just fine. The best to work out marital problems is usually under one roof.

A Separate Peace

As with the decision to divorce itself, separation is often experienced differently by the individual who initiates the separation and the one “informed” that an impasse is at hand. Whether you are the dumper or dumpee, remember that your future will be impacted by your decisions during this critical time.  It only makes sense that the person who initiated the divorce comes to embrace the single life of separation sooner; that individual has been living with the decision for quite a while. Given this fact, the individual who has initiated the divorce should see the separation as a means of providing his or her partner with time. Even though you might be saying, “Okay, we’re going to end the relationship. Let’s get working on the terms of the separation. Let’s see if we can mediate this,” your partner is still reeling from the pain. At first, he or she will not be nearly as ready to negotiate the terms of the agreement — certainly not in any sense that could be favorable to you.
If you have been rejected by your spouse, on the other hand, use the separation period to help yourself heal. As you go through the stages of grief, you will come to see yourself as a solo act. You might need to utilize this time to brush up on job skills, gain self-confidence, or simply come to know yourself as an individual who stands alone. You’ll know you have arrived when you too can say, “Okay, I can see our incompatibility. This needs to end. At this point, I would also choose to end this relationship and go on in a new direction.”  Remember, the process is painful. If you’re like most people, you won’t pass quickly through the emotional gauntlet of separation. Typically, psychologists say, the first year following separation is most difficult. During this period, you’re most prey to mood swings, sadness, feelings of loss, and anger. If you remain on this emotional roller coaster for more than a year, however, you are not progressing fast enough. It is time to seek counseling or some other form of psychological help.
Published research bears this timetable out. According to a study from psychologist Joan Kelly, Ph.D., of the Center for Marital Transition near San Francisco, couples in conflict report that conflict drastically reduces after 12 months. Other research indicates that conflict and anger tend to diffuse after a period of separation, and if couples have not continued to interact, at the end of two years, most of the conflict will be gone.

Surviving Forced Togetherness

Sometimes, despite the positive impact of physical separation, couples stay together in the same physical space for legal and financial reasons until the day of the divorce decree. There are a number of reasons why this is often legally advisable. If you seek full or joint custody of the children — or if you just want a generous visitation schedule — staying in the house will help your cause. Leaving, in fact, often puts you at a tremendous disadvantage in any legal proceeding. Although the opinions expressed here, as in the rest of the book, do not constitute legal advice, the decision to stay or leave is so important that we strongly advise you to consult your attorney before you do anything.  Your leaving might make it easier for your spouse to delay the signing of divorce papers, putting you at a strategic disadvantage. Indeed, many times, a spouse will just want you out of the house but will be reluctant to move forward with divorce because of economic circumstances. Once you leave, your spouse will have little incentive to move quickly. The longer your spouse delays the divorce, the more frustrated you will become, and the more likely you will be to sign an agreement less favorable to you. On the other hand, if you stay in the home, your spouse will be the frustrated one; you will have the upper hand during negotiations.  Finally, for those who are particularly money-conscious — and who isn’t these days — the longer you and your spouse share the same home, the more money you will save.
If you’ve decided to stay in the house until the divorce is over, turn one section into your “camp.” If you move out of the bedroom, do not — we repeat, do not — leave your clothes, jewelry, and other possessions in the dresser, especially if you plan to use them on a daily or weekly basis. Instead, choose a spot — the den, the guest room, or even the basement — and move all your clothes and possessions there so that you and your spouse have as little negative interaction as possible. (Workday mornings are pretty negative even in the happiest marriages!)  If you have been advised by your attorney to stay in the house, try to do so as amicably as humanly possible. One psychologist we have interviewed even suggests Yogic breathing exercises as a means of dealing with the stress this sort of situation brings. Remember, your code word is equanimity. Of course it will be difficult, but adding any more hatred or animosity to the marital pot is toxic.

Red Alert: If you think you are going to divorce eventually and you might want custody of your children, some judges might hold your move from your children’s house against you. Be careful. Don’t let a short-term goal interfere with what you really want.

Sayonara

If life in the house is intolerable and you know custody is not in the cards for you, a move might be wise. It could take one to three years for your divorce to be final, and neither you nor your spouse could cope with one to three more years of tension. More important, it’s not good for the children. Again, check with a lawyer before making a decision.  Before you move, discuss the division of personal property with your spouse. You might not be able to take anything with you yet (one woman we know stayed with 10 friends during the 12 weeks it took her to locate an affordable apartment), but at least you’ll both understand that by moving out, you’re not giving up your rights to property. Your lawyer might want this in writing. If you don’t have a lawyer, write down that you are not giving up any rights by moving out and ask your spouse to sign what you’ve written.  If life in the house is intolerable and you want custody of the children, talk to your lawyer about moving out with the children. Your lawyer might want to first obtain an order from a judge, giving you temporary custody of the children, thereby giving you the right to take the kids with you when you leave.

Silver Linings

During your first year of separation, you might find comfort and camaraderie in one of the myriad support groups for the divorced. As you go about choosing a group, however, do be cautious. Some divorce groups are wonderfully supportive and nurture healing. Others foster conflict and fan the flames of anger. It will not help you to associate with a group that feeds the anger. What you really need — and what should be available in most areas — is a support team that facilitates positive, constructive solutions for your life so you can get beyond your relationship and divorce and move on.

Pamela Weintraub and Terry Hillman are co-founders of Divorce Central, an online service. Ms. Weintraub is the author of more than a dozen books and was previously editor-in-chief of OMNI Internet. Ms. Hillman owns a business that produces multimedia educational programs for professionals. This article has been excerpted from their bookThe Complete Idiot’s Guide to Surviving Divorce.

Divorce Decisions That Effect Your Tax Return

There are many available claims on your tax return, especially with respect to children, which can save you significant tax dollars.  The rules for most of these are complicated – especially as they apply to separated parents.   However, when applicable, the tax savings can be significant.  Do your research before signing your legal agreement, and have a professional complete at least your first tax return after legalizing your financial settlement.  Here are five of the most complicated topics.

1. On Marriage Status, Go by the Calendar
Even if your divorce was finalized between Jan. 1 and April 18 this year, you are still officially hitched to your ex-spouse when it comes to filing your 2010 taxes. The flip side: if your divorce became official in December, you can’t file as married even if you were for most of the year and it would save you money. There is, however, a third status you can claim besides single or married. It’s called “head of household,” and it could save you money. The status was originally meant for single people, but some people in the middle of a divorce might qualify as well. To do so, you have to have lived apart from your spouse for the last six months of the tax year; paid over half the cost of keeping up your main residence; and be able to claim, under the rules for children of divorced or separated parents, your child as your dependent. Also, you have to file a separate tax return from your spouse, even if you are still legally married. But if you are still willing to fill out your estranged mate’s IRS forms, go ahead and check the married box.

2. Splitting the House May Be Harder Than Splitting UpYou don’t have to pay income taxes on assets that are transferred during a divorce. But if you end up getting the house, you won’t be getting it tax-free. The reason has to do with capital gains taxes, which still apply even to the recently divorced, and they come into play if you decide to get rid of your house after the divorce. Normally, a married couple doesn’t have to pay taxes on a gain of up to $500,000 on their primary residence. But now that you are single, you can only exempt half of that. So if your house sells for more than $250,000 more than what you and your former spouse paid for it, you will owe taxes. But you do get one advantage if you are recently divorced: if you moved out of the house before the divorce was final, and then ended up getting the house in the proceedings anyway, you can still claim the house as your primary residence.

3. Just Because the Kids Spend Time with You — Even Equal Time — Doesn’t Make Them Dependents
Years ago, the majority of custody arrangements were quite simple: the mother got custody of the children and, as a result, the right to call them dependents. In recent years, however, custody agreements have become quite creative and custody may be shared over weekends, vacations or during the workweek. These arrangements are complicated by the fact that neither the most recent version of the tax code nor IRS regulations define exactly what is the definition of custody or a custodial parent.
Generally, you can claim the kids as dependents only if you were designated the custodian by court order. When there is no such agreement or order, or when joint custody applies, the custodial parent is considered to be the parent who has physical custody of the child for most of the year. What happens when you share custody 50-50? Of course, you can’t both claim the same kid as a dependent. That’s against the law. Some couples switch who claims the kids from year to year in order to share the tax benefit, and if you only have one child that’s the only option. But if you have more than one kid, the best bet to avoid confusion may be to split the dependency of the kids up between the two parents, which is allowed even if both kids spend the same amount of time with each parent.

4. Alimony Looks Good on Your Tax ReturnIn most cases, alimony, if you are the one paying it, will lower your tax bill. Even better, alimony is an above-the-line deduction, which means you don’t have to itemize to get the tax advantage. Still, there are no tax breaks for lingerers. If you and your ex-spouse continued to share a residence after the divorce, any alimony payments made during that time cannot be deducted. What’s more, the payments have to be pursuant to a written separation or divorce agreement, and cannot be considered child support. So couples who are facing extended divorce proceedings due to finances, custody battles or state laws that require extended periods of separation may still have trouble qualifying for the deduction.

5. Child Support Is Always Tax-Neutral
While alimony is considered a taxable event, child support is always tax-neutral, meaning it doesn’t affect your taxes in any way. This can provide an incentive to the ex-spouse who is making the payments to attempt to classify part of child-support payments as alimony, especially as state laws increasingly complicate the requirements for support. In recent years, for instance, parents have been required to make payments for college education. No matter how big the check — or how long a parent has to write it — the tax-neutral rules still apply.

As always, ask a professional in Katy, Texas to help you with your financial decisions, rather it is your taxes, selling your house or an attorney to help with the divorce.  You owe yourself a good financial future.

Custody of Children in Katy, Texas

Texas law requires Katy TX family law judges to consider the best interests of the child in making any determination regarding Katy TX custody and Katy TX visitation. Texas law also presumes that Katy TX joint legal custody is in the best interests of the child, with the exception of cases involving Katy TX domestic violence. Child custody matters can become emotionally charged to the detriment of both the parents and children involved. Because this is so, if you and your spouse have a dispute over the custody of your Katy TX children, obtain the guidance of an lawyer well versed in Texas child custody matters.  We have names of great Divorce lawyers that can help you at Mickie C and Company Realty, Real Estate Divorce Specialist.

Money! Always Issue in Divorce in Katy, Texas

Even with the promise of fairness from your soon to be ex-spouse,or of a deal that sounds too good to be true, you should still  do your homework.  Remember not to make offers during negotiations of feelings of guilt and ” give away the farm”.    You are probably thinking:  ”Is that supposed to be a secret?  I knew that already!”  Yes, that may be so – but you may also be underestimating how much of an issue it will be.  Seek out the appropriate professional and information, so that years from now you do not feel badly that you agreed to a settlement too quickly.  You may also want to budget.  You will be much more confident in your decisions if you prepare an estimate of a monthly budget to determine if you can afford to retain certain assets, like the house by yourself.  If not, remember Mickie C and Company Realty, is a Real Estate Divorce Specialist (yes, there is a designation for that) and can sell the asset for you, keeping in mind what both spouses want and the court may order.

Don’t Forget One of Your Most Valuable Assets in Katy, Texas When Divorcing

Next to your home, a pension – especially for an employee that has been with his or her company long term – can often be one of the most valuable assets that a couple has.  Certain types of pensions may need to be valued by a trained actuary in order to determine its true value.  Failure to do this may mean that you miss out on a great deal of money being included in your matrimonial property total, especially with large oil companies here in Katy, Texas.  Remember that the value on the annual statement of a pension is not always the correct one to use.

It is also necessary for the spouse with the pension to look into the regulations of that pension, in order to determine the amount that the spouse is entitled to receive, and in what manner.

For self-employed spouses, the value of their business is often included in valuing a couples’ property.  The valuation of a business can very complicated, and for many it is absolutely necessary to consult with a Chartered Business Valuator.

10 Detrimental Misconceptions about What Really Happens in Court Even in Katy,Texas

Preparing for trial requires superhuman strength. Many people try to simultaneously mobilize sufficient reserves of the required negative emotion while trying to remain on moral high ground. An angry confrontation can alter the course of negotiations and with the flick of a switch lead a lost couple into a nasty divorce.

When you find yourself at the end of your marital journey, it is excruciating to witness the brutality in the spouse you once loved, and to have a glimpse of your own brutal nature. You have shocked yourself with how easily, and even candidly, you revealed your spouse’s personal secrets to your attorney and then published those private embarrassments in a public court record. There are rare exceptions, but in order to find yourself in court you have almost certainly had to align yourself with negative and often erroneous assumptions. Here are ten of the most detrimental misconceptions about what really happens in court:

1. Destruction of your spouse is an acceptable means for getting what you need.
2. Your goals can be accomplished and sure victory attained by putting on a good fight. However, unlike traditional battle, where you can destroy and walk away, you might have to deal with your adversary for years to come.
3. Once you ignite a match in the courtroom, you can control the direction and intensity of the flames.
4. Your attorney will understand and execute your goals and desires in a way that satisfies your sensitivities and needs.
5. Your concept of fairness will approximate that of the judge’s. You believe there is a clear-cut, nondiscretionary standard of justice that is not dependent upon the judge’s personal values.
6. Your habitual negative thought patterns, fueled by well-developed propaganda to “create the enemy,” will cease once the trial is over.
7. It is your spouse’s fault you are at trial.
8. The judge wields a wand, not a gavel, and can magically solve your problems, no matter how much damage has been done to the family.
9. The court process will not hurt you, because you are invulnerable. In any case, whatever pain you feel will go away once the trial is over.
10. Your attorney can be vicious to your spouse, because that is your attorney’s conduct, not yours. And people who are abusively cross-examined in court never hold it against their spouse.

Too often, people end up in trial because they can’t tolerate any more negotiations. You think you are at the end of your collective ability to problem-solve. But that is not true. You may not really be at a stalemate; you may just have stale negotiations.

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This article has been excerpted with permission from the book The Good Karma Divorce by Judge Michele Lowrance (HarperCollins). Judge Michele Lowrance spent 20 years as a domestic relations lawyer prior to becoming a Domestic Relations Judge in the Circuit Court of Cook County, Illinois in 1995. She has been a guest on Good Morning America, The CBS Morning Show, CNN, ABC and other shows. She also appeared, produced and hosted radio shows and is a regular guest lecturer.

Tags: divorce, Katy, Katy Texas Divorce, selling house

In Katy, Texas a 50/50 Division of Property is Not Always Equal

In school when children are taught about fractions and things are divided 50/50, it is always equal.   In division of a couples’ matrimonial property, this fact is not always the case.    For example, a $400,000 house does not always equal $400,000 in stocks, or $400,000 in rental or recreational property.  There are tax implications affecting many decisions,  which may affect many of the assets and their values very differently.  Overlooking this fact may mean that you get less property than you actually should, or at the very least, you may end us with future tax hits that you were not prepared for or even aware of.

The housing market and stock market are just a couple of examples that in the future may affect the property you choose to retain and in turn your future personal net worth.

Wisdom of Grandmother, a Story to Take to Heart

Our divorce was finalized after two years of pure hatred, name calling, playing “This Is Mine, You Can Keep That”… Fast forward another year when I was out visiting my 90 year-old grandmother in rural Mississippi… I was griping about some stupid thing my ex- husband had done when she looked at me and said, “Why do you hate him so much? You were best friends until you divorced.” “WELL”, I began, “He did this, and this, and this… and I CAN’T STAND HIM.” Pitifully, she just shook her head and looked at me and said “You’re divorced. You don’t love him. He doesn’t love you. But you have a small child together and you need to stop acting so selfish and start acting like parents. Forgive him and move on.” Ok. Let me tell you that when your grandmother (who normally has you  on a pedestal and thinks you can do absolutely nothing wrong) begins to notice that you’ve become nothing more than a griping whiner, you have to really look at yourself.

So upon returning home, I called my ex and we decided we needed to try to work out his – I mean our “communication” issues… Although we had never argued in front of our son, we realized that if we wanted to bring up a good, well rounded child, we would need to stop the constant complaining and arguing. The plan worked…

Are You a Victim?

Feeling like or labeling yourself a victim of your divorce is one of the most disastrous moves you can make.  It will prevent you from moving forward into a new life.  Victim-hood renders you powerless.  To crate a new life after your divorce, you need to be fully responsible for your past, present, and future.  Being responsible means having control over one’s life, and that is what it takes to both recover from the the emotional wounds of a divorce as well as plan for your new life.

If you consider yourself a victim, then you believe that you had little to do with what happened to you.  You take no responsibility.  The responsibility is someone else’s and that leaves you with no power.  Victims blame someone else.  Blame absolves them of their part in the dissolution of their marriage.  Blame keeps them stuck in the pain of the past and their divorce.

It is so much easier to place blame on someone else than accept personal responsibility.  The fact is that two people inhabit all marriages.  Those two people are co-creators of their marriage and their divorce.  Even if one of the partners was unfaithful or a liar, there are always signs along the way that we either refused to see or to acknowledge.  If we are in denial about all the warning signs along the way, we can only look to ourselves for lack of some responsible action.

Blame leads to resentment.  Resentment consumes our mind chatter.  We spend far too many hours ruminating  about all the things that our ex has done or continues to do to us.   We resent their new life and our lack of one.  Consider the amount of time wasted being in resentment.  Exactly who suffers?  The answer of course is clear: you.  You are the one who is angry, sad , bitter and unhappy, not your ex.  Your blame and resentment, along with your regrets, are like poison in your system.  It completely immobilizes you.

Remember our choices define us and determine the course of our life.

Written by Shelley Stile

Divorce the House, Before the Spouse in Katy, Texas

Decisions about retaining the family’s largest asset should not be an emotional one.  As difficult as it sounds, this decision should be made strictly by considering the responsibility and the dollars and cents involved.

You must find out before signing the legal agreement whether you can qualify for a mortgage on your own.  Many people believe that a lender will simply remove their ex-spouse’s name but that is usually not the case!  Speak to a lender as soon as possible to find out if you can qualify and (if  so) how much you can qualify for.

If you do qualify, make sure you ask yourself these questions;

Can you afford the monthly cost to service this debt?

What about the costs of maintaining the home?  Things like utilities, property taxes, and unexpected maintenance?

Do you have the time and energy to maintain a home?  Will you be left with 25 years of “stuff” to deal with on your own? Are you prepared to mow the lawn and clean the home?

Keep in mind that divorce is one of the few times in life when we often do not listen to our intuition, although it is the most important time to do so!    Seek out the appropriate professionals to help you make informed decisions.   Educate yourself on the facts.    Remember treat your decisions as a business deal and not an emotional one.

Tags: divorce, finances, Katy, long-term consequences