Woll & Woll Blog

DIVORCE RANT: SECRETLY TAPE RECORDING YOUR SPOUSE……IS IT EVEN LEGAL?

February 21st, 2012

At times, I receive calls from clients wherein they confide in me that they are afraid their spouse might lie and claim they are physically abusive in order to get them removed from the marital home during the pendency of a divorce. Typically, both parties have a right to continue to live in their residence during a divorce proceeding. The exception of this rule is when one spouse has physically assaulted their partner and the police remove the offending party from the residence.

When I have a client that is living in constant fear of being falsely accused of domestic violence, my preference is to separate the parties. Unfortunately, when the custody of children is involved, or the couples’ economic situation does not allow for a separation during the divorce process, couples may be forced to live together until their divorce is finalized.

While there certainly are many people who need police and Court protection to ensure they are safe from physical abuse, it is sadly not uncommon for a person to falsely claim they have been abused by their spouse to gain an unfair advantage in their divorce. So, what can you do if your spouse is “crying wolf” to friends, family and the police, claiming you are a batterer when you are not?

In the above-mentioned scenario, some attorneys advise their clients to carry a voice activated tape recorder, so that the client can capture “the truth on tape” to ensure that a false accusation of abuse may be countered with the recorded truth. In extreme cases, a tape recording, recorded without your spouse’s knowledge and consent, might provide you with the piece of evidence you need to expose your spouse for the liar he/she is. But, is it legal to tape record a conversation when the other conversant does not know he/she is being taped?

In the State of Michigan, secretly tape recording and disseminating a conversation is a felony that is punishable by up to 2 years in prison and up to $2,000.00 in fines, even if you are a party to the conversation. If you are secretly recording your spouse during a fight for instance, with the intent to utilize the recording, your actions are illegal because you are violating your husband’s/wife’s right to his/her reasonable expectation of privacy. Therefore, if you have been advised to protect yourself by carrying a voice activated device to record your conversation with your spouse, (in Michigan or a state with a similar law) make sure you let your spouse know LOUD AND CLEAR that you are tape recording the conversation. This statement should be the first thing that is picked up by your recording device.

Sometimes both parties’ knowledge of the fact that their verbal communications are being recorded forces both husband and wife to act more civil toward one another while they continue to share their home.

Bottom line, the use of a tape recorder to protect against being falsely accused of abuse is extreme and should only be used in the most high conflict situations, and of course only when your spouse is aware of the fact that he/she is being taped.

NOTE: Different states have different laws on the secret tape recording of a conversation. Therefore, make sure you know the laws of your state before you secretly tape your spouse.

Posted in Custody, Physical Abuse, Privacy, Separation, Tape Recording | No Comments »

DIVORCE RANT: ADDICTIONS AND HOW THEY IMPACT CUSTODY AND PARENTING TIME IN DIVORCE

January 3rd, 2012

Addictions, to such things as alcohol and drugs, are a contributing factor in a high number of divorce cases. (I reference alcohol in this Blog, however, all of the points also apply to a person with a drug addiction.)

ALCOHOL:

Proving someone is an alcoholic, when they say they are not, might be difficult. If you know your spouse has a drinking problem, but he or she is going to deny it, what can you do to prove it in order to protect your children?

COURT ORDERS:

Usually the burden is on the accusing parent to prove that the other parent has a drinking problem. However, when it comes to the safety of minor children, many judges are willing to err on the side of caution and enter an Order that requires the offending parent to refrain from drinking alcohol during his/her parenting time. If you can prove that the offending parent has violated the Order, you can petition the court for further parenting time restrictions.

SOME MORE IN DEPTH SOLUTIONS INCLUDE THE FOLLOWING:

ALCOHOL ASSESMENT OR TESTING:

An alcohol assessment is done by a mental health professional that has special training in the assessment of alcohol abuse. Unfortunately, a high functioning alcoholic may be able to manipulate the results of the test to his/her advantage. There is, however, now a test that can track the alcohol in your system, which may be helpful if a party has lied about their recent alcohol consumption.

RANDOM ALCOHOL TESTS:

There are many testing facilities that offer random alcohol tests.

BREATHALYZER TESTS:

It is not unheard of to require the offending parent to take a breathalyzer test at the beginning and end of their parenting time.

If your spouse fails any of the above mentioned tests and you can prove it, the Court will place greater restrictions on the offending parent.

ADDITIONAL ASSISTANCE CAN TAKE THE FOLLOWING FORMS:

GUARDIAN AD LITEM:

A Guardian Ad Litem (GAL) is an attorney that is appointed to represent the best interests of the children. A GAL is able to interview the parents and other relevant parties. The GAL can also review such things as the parties’ medical records to make a determination regarding what is best for the children. The GAL reports his/her findings to the Court. If the GAL finds that the other parent has a drinking problem, he/she can recommend that the Court place restrictions on the offending parents time with the children. Restrictions might include supervised parenting time or a prohibition against transporting the children in a car. The GAL can also monitor random alcohol tests to test the sobriety of the offending parent.

SUBSTANCE ABUSE COUNSELING:

The Court can require an alcoholic parent to attend substance abuse counseling. Regular attendance in therapy can be monitored by the Court and shared with the other parent.

Posted in Addiction, Alcohol Testing, Breathalyzer, Children, Counseling, Court Order, Custody, Divorce, Family Court, Family Law, Guardian Ad Litem (GAL), Parenting Time, Parenting Time Coordinators, Random Alcohol Testing, Random Drug Testing, Substance Abuse, Substance Abuse Counseling | No Comments »

THE DIVORCE RANT: IF YOU COULD SEE WHAT I SEE

October 28th, 2011

An affluent business man, we will call Larry, retained my services to represent him in his divorce action. Larry is the father of three young children. When the parties’ youngest child was only three (3) months old, Larry’s wife, who we will refer to as Lolita, left him for a man she met at yoga. Larry was devastated when Lolita filed for divorce and requested sole physical custody of their children. He felt cheated in many ways but was most saddened by the prospect of not beginning and ending the day with his children on a daily basis.

After Larry shared his story with me, I told him during our very first meeting what I thought a fair settlement in his case should look like. I gave him my opinion on everything from custody, parenting time, child support, spousal support to the division of the parties’ assets and debts. Larry, although humiliated and depressed by the state of his life wanted to attempt to work out an amicable settlement with his wife, with nominal assistance of counsel. Lolita, on the other hand, wanted to grab as much of the marital pie as possible and she was therefore not interested in peacefully resolving her case with her soon to be ex-husband.

Lolita hired a bulldog to represent her in the divorce action. After hiring her bulldog, Lolita went on automatic pilot and allowed her lawyer to run the show. The case quickly became a nightmare. In an attempt to remove Larry from the house, Lolita’s attorney filed a Personal Protection Order against Larry to have him removed from the house and the kids. The allegations were quite weak but they were enough to convince a judge to hold an evidentiary hearing on the issue during which time Larry was removed from his home. Witnesses were called and the lines between friends and family were drawn. Lolita’s attorney attempted to extort money and a custody plan from Larry in exchange for dismissing the Personal Protection Order. A lot of money was spent on the Personal Protection Order action and the divorce before Lolita realized the damage she had caused her family.

The PPO eventually did get dismissed, after a lot of time, expense and heartache. The parties divorce did ultimately settle on the eve of trial. In the end, the couple spent over one hundred thousand dollars each in legal fees.

GUESS WHAT LARRY’S SETTLEMENT WAS?????
The exact settlement that I outlined for him in my office during our first meeting, before he spent a year of his life and a small fortune on his representation.

So what is the lesson here? What can you do to avoid ending up in Larry’s shoes? Here are a few tips:

1. Hire the Right Attorney for the Job:

- Make sure you hire an attorney that specializes in family law.

- Arm yourself with knowledge about potential attorneys before choosing your representation. What type of reputation does he/she have?

– Interview several attorneys and find the one that you believe will be able to best represent you fairly in your case. Go with your gut here.

- Do an internet search on the attorney before you make a decision.

- Research whether the attorney you have in mind has ever been disciplined by the Attorney Grievance Commission.

- Always ask your attorney to take a cost vs. benefit approach to the issues in your case.

2. Know the Players in your Case:

- The players include such people as the judge, Friend of the Court personnel assigned to your case, any mental health professionals involved and the opposing counsel.

- Make sure your case strategy is in line with the players in your case. Your attorney should know enough about your judge to predict how he or she may rule on certain issues. It is also helpful if your attorney knows the opposing counsel and what strategy works best in dealing with him/her.

3. You Get More Bees with Honey:

- I have been in practice now for close to 20 years. While I can be extremely aggressive if necessary to protect my client’s interests, it is never a good idea to use the skill unless necessary.

- The attorneys and the parties should attempt to get along which is not to say that includes being pushed around by the opposing side.

- Use the services of therapists, mediators and parenting time coordinators to resolve disputes rather than the court system when practical.

- Do not use the court system to prove a point just to be right when the cost to do so emotionally and/or financially is just not worth it.

- Know that the court system is not designed to punish your spouse for all of the wrongs he/she committed during the marriage. Until divorce, you and your spouse are in, what I like to call, a marital partnership. Some partnerships are simply better than others. For instance, if your partner wronged you 5 years ago and you knew about it and stayed married, do not expect the court to make you whole for something that will be considered by your judge to be ancient history.

*****Remember, if you and your spouse cannot agree, a virtual stranger will be making huge life altering decisions on your behalf. It is best to keep control of your own life and destiny whenever possible.

Posted in Division of Property, Divorce, Family Court, Family Law, Marital Home, Mediators, Parenting Time Coordinators, Personal Protection Order, Settlement, Therapists | 2 Comments »

THE DIVORCE RANT: THE DROWNING HOUSE

September 28th, 2011

Back before the economy tanked, many of my divorce clients owned homes that had equity. Usually, the marital residence was an asset and not a liability. When homes were worth money, a divorcing couple had options. One party could buy out the other’s interest in the property, or the home could be sold and the wife and husband could divide the equity realized from the sale.

Sadly, in this day and age the marital home is rarely a marital asset, but is now more often than not a marital debt. So what can you do??????

First, you need to decide if the home has equity. In order to determine a home’s equity, you need to know what the home is roughly worth by doing a market analysis, or by obtaining an appraisal. Once you determine the value of your home, you need to subtract what you owe on the property from the mortgage and/or home equity loan. Your spouse will most likely be entitled to half the equity or debt owed on the residence.

But what do you do for instance when you have a mortgage totaling three hundred thousand dollars ($300,000.00) and your home is only worth two hundred thousand dollars ($200,000.00)? You need to determine if it makes sense for you or your spouse to keep the house after the divorce is final. If you and your spouse care about saving your house, preserving the house for your minor children, protecting your credit, or want to keep the home despite the divorce for any other reason here are some thoughts:

- Can one of you afford to remain in the house once you take into consideration that you and your spouse will be maintaining separate residences. Once you no longer live together, you will be paying two sets of bills?

- It is worth contacting your mortgage lender to discuss options. Let him or her know you are going through a divorce and you are trying not to let the home go into foreclosure. Discuss what steps are necessary to complete a possible loan modification.

- If you sell the home, can you and your spouse afford to bring money to the closing to pay any mortgage/home equity line deficiency created by the sale?

- If you are considering a “short sale,” how will that effect your credit? In simple terms, a “short sale” is when the bank allows you to sell your house for a price that is lower than what you owe on your mortgage.

- You may have to agree to both remain on the existing mortgage until the market improves. One party can be awarded exclusive use of the home for a period of years and the other party can retain joint ownership of the property with or without rights of survivorship until the home is sold or refinanced.

- If you are the person who is vacating the home, you need to be certain there are safeguards in place to insure the monthly mortgage is being paid while your name remains on the mortgage obligation.

- If you do not want to continue to own the former marital home with your spouse for any significant length of time, you should research whether a mortgage assumption or something similar can be accomplished after a certain time period following the divorce.

If you are one of the lucky few who have equity in your house, you need to decide if you want the home. If you want the home and you can afford it, you will need to purchase your spouse’s interest in the property if the home has value. If you and your spouse both want the home, the courts will either order that the home be sold, or the court may allow the person willing to pay the most to buy out the other party’s interest.

Assuming you can purchase your wife or husband’s interest, the next inquiry then is whether you can refinance the home in your name only, or whether you will need to keep your spouse’s name on the original mortgage for a period of time. You will need to consult a mortgage specialist to discuss your options regarding refinancing. Because the housing market is so difficult these days, your spouse may agree to remain on the existing mortgage obligation for a certain time period to avoid the costs associated with selling the property. In addition, when children are involved, you and your spouse may share a common goal of keeping the children in the marital residence for stability purposes.

In the current housing market, I find that there is not one right answer on what to do with the marital home in the event of divorce. Most of my advice is case specific. Therefore, before you make any decisions about what to do with your home in a divorce action, arm yourself with as much knowledge on the topic as possible. Contact your mortgage lender to discuss options, do research online and consider consulting with a real estate attorney in your area.

Posted in Assets, Children, Credit, Division of Property, Family Court, Family Law, Home Equity, Liabilities, Marital Home, Mortgage, Short Sale | No Comments »

THE DIVORCE RANT: REMOVAL OF DOMICILE – SHOULD YOU STAY OR SHOULD YOU GO?

August 18th, 2011

With the troubled Michigan economy, many parents are forced to consider employment opportunities outside of the state. If an out-of-state move is necessary, a divorced parent will need to request court permission to leave the state if they share legal custody of their minor child with the other parent. Before the economy went awry, a request to move out of state with a child was not easily granted in a case where both parents were active participants in a child’s life. However, nowadays with more and more people losing jobs, the necessity of an out-of-state move has become a reality for many families.

In Michigan, the Court views a request for a change of domicile from the perspective of whether the move will improve the quality of life for the family with the focus on the child. The Court will consider the following five (5) factors:

Factor A: Whether the legal residence change has the capacity to improve the quality of life for both the children and the relocating parent.

Factor B: The degree to which each parent has complied with, and utilized his or her time under, a Court order governing parenting time with the child, and whether the parent’s plan to change the child’s legal residence is inspired by that parent’s desire to defeat or frustrate the parenting time schedule.

Factor C: The degree to which the Court is satisfied that, if the Court permits the legal residence change, it is possible to order a modification of the parenting time schedule and other arrangements governing the child’s schedule in a manner that can provide an adequate basis for preserving and fostering the parental relationship between the child and each parent; and whether each parent is likely to comply with the modification.

Factor D: The extent to which the parent opposing the legal residence change is motivated by a desire to secure a financial advantage with respect to a support obligation.

Factor E: Domestic violence, regardless of whether the violence was directed against or witnessed by the child.

In viewing the five (5) factors outlined above, the Court must also determine the appropriate burden of proof to employ when deciding whether to grant your request to move or not. Therefore, the Court must first determine whether an established custodial environment exits with one or both parents. The custodial environment of a child is established if over an appreciable time the child naturally looks to the custodian in that environment for guidance, discipline, the necessities of life, and parental comfort.

If there is an established custodial environment in your house, but not in the house of the other parent, then the Court will view the five (5) factors based upon the “preponderance of the evidence” presented. If there is an established custodial environment with you and the other parent, then you need to prove to the Court by the higher standard of “clear and convincing evidence” that the move is in your child’s best interest.

Typically, if you file a motion for a change of domicile, the other parent will most likely counter with a motion for a change of custody. If the Court has determined that there is an established custodial environment in both homes, it must also conduct what is called a “best interest analysis” in which the Court views twelve (12) specific factors as they relate to the well being of your child. The best interest of a child is considered the sum total of the following factors:

(a) The love, affection, and other emotional ties existing between the parties involved and the child.

(b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed.

(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care and other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.

(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.

(e) The permanence, as a family unit, of the existing or proposed custodial home or homes.

(f) The moral fitness of the parties involved.

(g) The mental and physical health of the parties.

(h) The home, school, and community record of the child.

(i) The reasonable preferences of the child, if the Court considers the child to be of sufficient age to express preference.

(j) The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents.

(k) Domestic violence, regardless of whether the violence was against or witnessed by the child.

(l) Any other factor considered by the Court to be relevant to a particular child custody dispute.

If there is an established custodial environment in only the moving parent’s home, the Court does not need to go through the best interest analysis. The factors only need to be considered in cases where there is an established custodial environment in both households. The Court does not have to conduct two (2) separate hearings so long as the twelve (12) factors are addressed by the Court and in this scenario the parent wanting to move must prove by clear and convincing evidence that the move is it in the child’s best interest based upon the factors.

Whether you live in Michigan or not, here are some general points to consider:

- If you know you need to move, try to work out an agreement with the other parent before turning to the courts for help. Make a parenting time proposal to the other parent in writing that provides as much parenting time as possible for the non-moving party. If you have to accept a position across the country, you will need to share parenting time with your ex in bigger blocks of time. One parent could have custody during the school year and the other could have custody during the summer and school breaks as well as all of the child’s long weekends during the school year.

- Your proposal should also include some economic assistance with the cost of transportation.

- Offer to keep the jurisdiction in the original state, regardless of the move.

- Offer to set up Skype and other lines of communication that will assist the non-moving parent with daily contact with the child.

- Try to find employment in the states closest to the home state.

Posted in Children, Family Court, Family Law, Parenting Time, Post Judgment, Removal of Domicile | 1 Comment »

THE DIVORCE RANT: TECHNOLOGY AND DIVOCE

August 2nd, 2011

As we all know, the ability to access information is quick, cheap and everywhere. Naturally, this access can have a direct impact on your divorce. I cannot tell you how many people have learned about their spouse’s affair by stumbling upon an inappropriate e-mail on the home computer, reviewing a text message from the other man or woman after hearing the ding of their wife’s or husband’s Blackberry in the middle of the night, or by simply paying a little more attention to the cell phone charges on the monthly bill.

I am sure that most of us have said and done things we don’t mean and regret when we are particularly upset. Of course emotions run extremely high during divorce and even people who are typically mild mannered often lose their cool. Having said that, any e-mail, text, or voice-mail message you send to your spouse could be used as a potential exhibit against you in your litigation. The same thing is true for your Facebook or Myspace page. Your public postings on the internet are fair game to be used in court.

If you send your spouse a mean or threatening e-mail/text/voice-mail message, it could impact not only the issue of custody, parenting time and the settlement in general, if it is bad enough, it could also lead to a Personal Protection Order against you. If you have children, your ability to communicate directly with your spouse about your kids will be greatly compromised. In addition, an offensive transmission of any kind to your spouse will leave your judge with an impression about the type of person you are which may be remembered by him or her throughout your case. Therefore, the advice I give to my client’s is assume that every communication you have with your wife or husband during your divorce may be used as an exhibit in Court.

EDIT YOURSELF and take a boxing class if you need to blow off steam!

Posted in Children, Custody, Divorce, Family Court, Family Law, Uncategorized | No Comments »

THE DIVORCE RANT: WHEN TO FILE FOR DIVORCE

May 17th, 2011

My name is Jessica Woll and I have been practicing divorce and family law for close to two decades. The job has taught me a great deal about human beings going through what is often one of the worst experiences in their lives. In my Blog I will share my client’s stories, while maintaining their right to privacy. I will offer advice, tips and insights based upon these stories. I hope that you find the information beneficial.

In this months blog, I will briefly discuss the issue of whether you should file your divorce action first.

Most people who call me about filing for divorce ask me if they need to file for divorce before their spouse files. Since every person’s situation is different, the answer depends upon your specific facts and circumstances.

I generally tell a person to file for divorce first in the following situations:

WHEN TO FILE:

- Your spouse has dissipated joint marital assets. If your spouse has taken marital funds without your knowledge and/or consent, you can ask for a mutual property restraining order when you file for divorce. The order does not stop you and your spouse from conducting business as usual with regard to the payment of the household bills. The order does however prohibit either party from taking extraordinary measures when it comes to spending. In order to obtain a restraining order, you have to file an action with the court first.

- Your spouse has cut you and/or the children off financially. Being denied access to marital funds is a common form of economic abuse in which the wage earning spouse maintains control over the non-wage earner. In this instance, once you file for divorce you can seek a court order that provides you with fair access to marital funds.

- Your spouse has threatened to repeatedly leave you and file for divorce but fails to take action. In this scenario, I usually find that the other person does not really want a divorce but that they are tired of the threat of divorce hanging over their head. The repeated threat of divorce is a form of emotional abuse. At some point you may want to take some control over the situation and file yourself.

- Your spouse is physically abusive. Physical violence is never okay. No person should continue to remain in an abusive situation where their safety is compromised. There is help available. Check out my website for resources.

- Your spouse suffers from an addiction or mental illness and fails to get help despite your repeated attempts to help him or her. At some point you need to protect yourself and your children. Divorce may pose the only answer under the circumstances.

- Your spouse threatens to take the minor children away from you.

I generally tell a person not to file in the following situations:

WHEN NOT TO FILE:

- There are no pressing issues of emotional, physical or financial abuse and you are simply on the fence about whether to go forward with a divorce. Since divorce is a big step, I believe that you should explore your options before taking such drastic action. In this instance, you may want to try counseling first to see if the marriage can be salvaged.

- Your spouse has agreed to seek help for addiction or other serious problems that have caused the breakdown in the marriage. If your marriage has broken down due to addiction or abuse of any kind, you need to set some boundaries. If you are inclined to give your spouse a chance to make amends, make sure you set rules that work for you in the situation. Do not waiver from the rules you set. If improvement does not occur, file for divorce.

- A major life event is occurring in your family such as a child’s graduation, a wedding, or the birth of a grandchild. People often call me to seek advice about divorce before they are ready to file due to an upcoming family event. While it may be important to let others close to you have their special day, don’t use this as an excuse to put off the inevitable to start the next chapter in your life. If you are hanging on to a marriage strictly to make it through your child’s wedding, get through the wedding and then file. Do not look to the next family event to hold on longer if the marriage is truly over.

- Set a timeline. If you feel you cannot control your spouse’s actions but you feel paralyzed to move forward with a divorce, remember that while you cannot control your spouse, you have control over what is acceptable to you. You can take control by setting some goals for the marriage. If the goals that are important to you are not met, set a time that makes sense to you to call it quits if the situation does not improve. Remember, life is hard enough and a bad marriage does not have to be part of the equation forever.

A NOTE ABOUT FILING:

If you live in a county in which the court pleadings are online, be aware of the fact that your spouse may find out about the divorce mere days after the filing. Since the filing is a matter of public record, there are attorneys who will obtain your spouse’s name and address in order to allegedly send your spouse information about the divorce process. In reality this is a disgusting way that some attorneys attempt to attract clients. Many attorneys, including myself, find this practice unethical. This practice is currently under investigation. Therefore, if you decide to file for a divorce, please ask your attorney if you live in a county where this behavior is allowed. If you live someplace where your spouse may find out by this method, make sure you arrange to tell your spouse about the divorce before they can learn about it from a stranger in the mail who happens to practice law.

Best regards, Jessica Woll

Posted in Divorce, Economic Abuse, Emotional Abuse, Family Court, Family Law, Physical Abuse | No Comments »

THE DIVORCE RANT: HOW DO YOU TELL THE CHILDREN ABOUT THE DIVORCE?

March 4th, 2011

In my experience, in normal circumstances, children are naturally devastated when they learn that their parents are getting a divorce. It does not matter how old or young a child is; the news is heartbreaking. Even children in their 20’s and older often feel that their “rock” or home base has been taken away from them.

So, if divorce is eminent, how do you tell your child? In my practice I am often asked this question, so here are some thoughts:

- Older children may feel betrayed by their parents if they learn about the divorce after the filing.

- Telling your children together about the divorce is almost always the best course of action, regardless of the age of the child.

- Assuring your children together, as a couple, that you love him/her and that the divorce is not their fault and has nothing to do with them is a must.

- Repeatedly telling your children individually or together that you love them and that the divorce is not their fault, after the initial discussion, is a very good idea.

- Not involving your children in the divorce action puts your children’s needs first; one should always adhere strictly to this policy no matter how awful your spouse has acted.

- Showing a unified front with your spouse at your children’s activities and school events will lead your child to actually believe that the divorce action is not his/her fault.

- Setting boundaries about the children’s exposure to the divorce and sticking to the rules you have set will help your child cope with their world falling apart.

- If you are seeing a marriage counselor, continue to use that person as a divorce counselor to keep the business of your divorce out of court as much as possible and away from your child.

- Choose a counselor to serve solely as a “divorce counselor” if you need help acting civil towards your spouse.

- Seek out a good counselor for your child to deal with the issue of divorce if appropriate.

- You are your child’s role model during good times and bad.

Remember, no matter how big of a rotten, cheating, low down scum bag your wife or husband is, they are still your child’s mother or father. Your child’s view of either of their parents should not be tarnished by your break up. That is not to say that if you have been treated unfairly you should not stand up for yourself. I am merely suggesting that you don’t bring your child into the mix.

Your child was made out of love; your child is truly your most treasured asset. You and your spouse share this miracle and you will have the honor to do so for the rest of your life, so don’t screw it up.

Posted in Children, Counseling, Divorce, Family Court, Family Law, Fault, Role Model | 1 Comment »

THE DIVORCE RANT: UNHAPPY MARRIAGES-WHY DO PEOPLE STAY?

February 23rd, 2011

For my fifth post I will focus on why people stay in unhappy marriages and thoughts to consider when deciding whether to stay or go.

Here is a list of some of the main reasons why people stay in unhappy marriages:

CHILDREN:

Unless you have children, it is difficult to understand why a person would stay married for the sake of his/her child. Having a child myself, I can see why a person would not want to give up living under the same roof as their child in exchange for remaining in a crummy marriage. However, when abuse of any kind is part of the equation, divorce may be the best option for both you and your child. Children are like sponges, they absorb what they see, feel and hear. Children are very perceptive and they will certainly pick up on your unhappiness. Remember, you are your child’s role model. Are you modeling for your child that is okay to stay in a loveless situation? Or even worse, are you modeling for your child that it is okay to take abuse?

I have found that sometimes two (2) single but happy parents are better than one unhappy family unit. Studies have shown how children of divorce fair after their parent’s breakup depends upon the two (2) parents conduct towards each other as well as towards their child during and after the divorce. Both parents need to put their child’s best interests first. If both parents display a unified front for their child, reassuring him/her that they both love him/her dearly and the divorce has nothing to do with them, the child will, of course, fair better than a child with battling parents.

FEAR OF CHANGE:

How often do people stay in bad situations because the unknown appears more scary than the known? People simply do not like change, in fact most people fear it. I believe that fear is the absence of love. When I meet a potential client that is struggling with the decision to divorce, his/her story often reveals to me whether I should recommend a good therapist to guide him/her through the divorce process or if I should recommend a marriage counselor to help the person work on their marriage.

I recommend a therapist when I really do not hear any reason from the client that leads me to believe the marriage can be saved. Usually these cases involve infidelity, substance abuse, verbal and/or physical abuse. When a client is treated like garbage and disrespected, I really cannot find a reason for them to continue the cycle of abuse by staying unhappily married.

I recommend a marriage counselor when I recognize that the marriage might be able to be salvaged. I believe that marriage is serious business and therefore the thought of dissolving your marital relationship should not be considered lightly. However, for a marriage in trouble to be fixed there needs to be a willingness on the part of both spouses to work on the relationship and change. Yes, there I said it CHANGE. Often change requires a party to recognize a pattern of behavior that needs to be changed. It also often means greater communication between the couple. Greater communication and other changes can often occur with the assistance of a savvy marriage counselor. But be warned, if only one spouse is interested in counseling, the counseling will fail.

In both instances, I ask the client to make a private “pro” and “con” list regarding their marriage to aid them in their decision regarding whether to file for divorce.

If the negative list is infinitely longer than the positive, I tell them they may want to consider filing.

Remember, life is hard enough and it is certainly harder when their spouse is not in their corner. We all have the right to be happy and sometimes we unfortunately have to fight for that right.

PHYSICAL AND/OR EMOTIONAL/ECONOMIC ABUSE:

Serious abuse in any marriage is never okay. Sadly, if the abuse is bad enough, an abused person may be so beaten down that they do not have the confidence to move forward. In some extreme circumstances the abused spouse might be too afraid to leave. All I can say is, in these instances, please get help. Check out my web site at www.wollandwollpc.com for more information.

SUBSTANCE ABUSE:

I cannot tell you how many of my cases involve substance abuse of some sort. Sometimes a spouse who is abusing drugs or alcohol must hit rock bottom before they realize that he/she is about to lose everything of importance in their lives. Sadly, this realization often comes too late. If you are married to an abuser ask yourself these questions:

- How many times has your spouse promised to quit? How many times has he/she actually made good on his/her promise? If so, for how long?

- How many times has your spouse’s addiction placed him/her, you or others in danger?

- How many lost opportunities have you experienced as a family as a result of the addiction?

- How many times have you threatened to file for divorce only to take your spouse back during a dry (albeit, possibly brief) spell?

- How long do you want to continue to be an enabler rather than an empowered individual?

Remember, at some point you need to realize that you cannot control your spouse but you can certainly control yourself. When you are married, you are part of a marital partnership. You basically sink and swim in that partnership. If it is time for the partnership to end, dissolve it now and stop the madness!!!!

INFIDELITY:

Like substance abuse, I cannot tell you how many of my cases involve infidelity. Often, if one spouse is cheating, the affair is an indicant of a bad marriage and not the cause of it. Since people are usually afraid to be alone, they may not end a bad marriage until they have someone new in their life. I know it is a cop out that is true in a high percentage of divorce cases.

Often a cheating spouse, on some level wants to get caught. Clients often come to me to file for divorce after reading their spouses text message or e-mails that reveal the affair. I would therefore caution you, dear reader, to be careful what you put in print these days. If you need to end your marriage, have the decency to come clean with your husband or wife. Do not let them find illicit photos on the home computer. The more your spouse learns about your affair, the more difficult your divorce case is likely to be. You loved each other enough to get married, so try to like each other enough to end it with respect.

If you do decide you need to file for divorce please know that you and your spouse, to a large extent, create your own divorce experience. I have cases where the parties are at each other’s throats and in court weekly. These parties usually realize that the fight was a colossal waste of time, energy and money. On the other hand, I have many clients who understand that the best possible divorce is an amicable one. If you and your spouse are trying to have an amicable divorce but cannot agree on what that looks like there are many types of “alternative dispute” resolution options available so long as both parties are willing to work towards resolving the case peacefully. The later type of client understands that compromise by both sides in the long run leads to the best result.

I want to thank you all for the continued support and positive feed back about the Blog. If there are topics you would like me to address in the future, contact me on my Blog.

Posted in Divorce, Economic Abuse, Emotional Abuse, Family Law, Infidelity, Physical Abuse, Substance Abuse | 6 Comments »

THE DIVORCE RANT: WHO’S AT FAULT; IS IT WORTH PURSUING?

February 17th, 2011

Hello my name is Jessica Woll and I have been practicing divorce and family law for close to two decades. The job has taught me a great deal about human beings going through what is often one of the worst experiences in their lives. In my blog, I will share my client’s stories, while maintaining their right to privacy. I will offer advice, tips and insights based upon these stories. I hope that you find the information beneficial.

For my fourth posting, I will discuss fault in divorce and if it’s worth pursuing.

Any legally obtained information regarding your spouse’s infidelity may be used in a divorce action. In Michigan fault is a consideration in the division of property and may also be considered in awarding spousal support and attorney fees. Most family court judges realize that a lot of divorcing people have been unfaithful to their spouse before they file for divorce. Therefore, I have found that in order to be awarded more than fifty percent of the marital estate based upon fault, the fault needs to be pretty egregious. Meaning, your spouse has spent significant marital funds on their “extra curricular” activities for example. Even if fault is an issue, a judge may only award you a small percentage more than fifty percent of the marital estate. After you factor in additional attorney fees and heart ache to prove fault it may not be worth it. The decision to pursue a fault claim may cause you and your spouse to hate each other long after the dust settles on your divorce action. If you have children together, you need to think long and hard about this fact.

In the end, it all should come down to cost vs. benefit – and I do not mean just the financial cost. It is a fact that most married people that cheat on their spouse are unhappy in their marriage long before they turn elsewhere for love and affection. Usually, both people are unhappy long before the cheating begins. Cheating is usually a bi-product of a bad marriage and not the cause of it. That is not to say that cheating is okay, it is just to point out that the cheating aspect of your case should not take on a life (and expense) all of its own.

Posted in Division of Property, Divorce, Family Court, Fault, Infidelity | 6 Comments »