Archive
Parenting After Divorce (AND during marriage!)
Today I read an Opinion piece in the New York Times, and it’s so good, I think it deserves a spot in my blog for ya’ll to read. This article is just about parenting after divorce, but gives some insight into How NOT to Get Divorced. I particularly encourage all those who have an iron grip on what they believe their “rights” are with custody. You might be cutting off your nose to spite your face.
A Change is as Good as a Break
I must be a Change Magnet, though I can’t complain (much). Most of the changes I’ve experienced in the last decade or two have moved me forward in a positive path. Some have made me want to jump off the path and travel paths no more. But my current Change is just straight up Wonderful.
I had opened up my own solo practice here in Wyoming, but again, I was solid family law. I do have a great love for people who are going through their own family law experiences, and I do love to help. But as I might have mentioned before, family law is HARD. It’s emotionally exhausting, it’s painful, and it never seems to end. Best one can hope for at the end is that they’re not too beaten up to start again, and that their kids are still healthy and happy. I know that law, and those people, and their pain. I have lived it myself. So having options other than just family law have always been on my radar.
And just when I thought I would be doomed to be a solo forever, I saw an ad in the Jackson Hole News. It was for an associate attorney, at Lubing, Gregory & Rectanus, LLC. They’re a law firm in Jackson, they do very little family law, and they liked me (They REALLY LIKED ME!!!) enough to hire me.
LGR is legal utopia for me. I still have some family cases (though I’m taking new ones on a very limited basis), but I get to learn about other areas of the law as well. This is a very good thing for one such as I being a new-to-Wyoming lawyer. And they also have cases in Idaho, soooo since I’m also a fresh Idaho lawyer, I’ll learn that law as well while I work on cases with the partners.
These are good people. The entire staff–partners, associates, office managers, legal assistants–feel like a family. And having moved to Star Valley, Wyoming, and joining a Jackson Hole law firm, I think I *might* have Arrived. I want to stay with LGR until I die (or retire, whichever comes first). And I have a new Life Theme Song. Have a listen ;).
We’re Open!
I know it’s been a very long time since I posted an article. It’s been a VERY busy year for me! I’ve relocated to Wyoming, and am licensed here as well as staying licensed in Utah. I’m also working on my application to the Idaho Bar, so (fingers crossed) I can add that to my credentials soon.
And I am now taking new cases. I’m doing GAL work as well as domestic and a smattering of other civil law in Wyoming, and am available to take domestic and minor criminal cases in Box Elder, Cache, and Rich counties in Utah. I’m excited to learn new courts and new law (and there IS new domestic law in Utah! Stay tuned for THAT information.)
It’s been a very chaotic several months, but I’m finally settled enough to help YOU get resolution in your legal case. You can contact me at marca.tanner@gmail.com, or through the comments section on any blog post.
Cheers to new starts and new hope!
It's the End of the World As We Know It…
*Updates to the courts procedure while we’re going through this COVID-19 thing can be found at this link, which is to the Utah Courts webpage for updates.
Ok, so not really. It IS the end of the world as we know it for at least a few weeks to months. I’m avoiding Facebook, etc., myself, because I had been before (depression + Facebook=kill me now, most of the time) but it’s even worse now. My family is basically prepared. When the store shelves cleared immediately of toilet paper and water, I had a dozen and a half or so rolls, and kept wondering who these weird people were who thought a pandemic was the equivalent of an earthquake, and that our city water would suddenly become contaminated and undrinkable.
That’s not how pandemics work, ya’ll. That’s how earthquakes work (which as a sidenote, actually happened this morning early in the Salt Lake Valley, so maybe those folks are glad they bought up all the water…more about THAT here.).
Anyway. The beauty of my job is that I really CAN do it anywhere there’s an internet connection, and on Monday, I dragged my desktop home from my day job, and got myself set up to work from home for the next few weeks. I love working from home. As an anxious depressive, getting out of bed in the morning is excruciating, especially knowing I’ll have to, like, put on pants and makeup and not look like a slob and stuff. These past couple of days, I have literally dragged myself out of bed, put on my bathrobe, and sat down at my computer at 8am. No makeup required. No pants required. That’s straight up perfection, my friends.
It’s also really fantastic that most of us really DO have technology literally at our fingertips that allows for all kinds of communication without having to be WITH anyone. My smartphone has face to face calling (Facetime because it’s an Apple, but Skype and Facebook Messenger do the same thing). I can text if I don’t feel like talking. I can receive and send email from my phone as well. And so can 95% of the world’s population (that’s totally a guess. I have no data to support that percentage.)
The population that I’M speaking to now, though, you folks in Utah, you who are scared or confused about the legal system, who are afraid to leave your homes, but afraid to not be able to leave your homes, I’m still here for you. I’ve been doing a lot of family law legal consulting. For those who would qualify for CAPSA’s services, I do it for free. For those of you who actually CAN pay some legal fees, I charge $75/hr, which I can take through Venmo or Paypal or Square on a credit card. You CAN still talk to a lawyer–I can Facetime/etc with you. Or you can email.
The point here is this: Don’t feel like you’re stuck in a situation that you don’t want to be in because you don’t have access to any legal counsel. I’m available virtually by appointment (which you can make by emailing me–see my About tab at the top of this page). Or you can just email if you have a specific question. A lot of your FAQ’s are already answered on my blog here…just go to the “search” box at the top right of the page, and type in a keyword you need info on, and everything I’ve written about that topic will come up. Hell, if push came to shove, the courts are still open, and I can e-file any case documents for a legal case I’m working on, without having to leave my home office. (I actually HAVE completed entire cases without ever traveling to a courthouse.)
So keep that in mind. Don’t panic. It may be the End of the World as We Know It, but You Can Still Feel Fine ;).
Scars
**I owe the idea for this blog post to another “quintessential mom” I had the privilege of talking to this past week. Thanks for giving me new things to think about ;).
I got thinking about scars a few days ago. I have a few…There’s one on my right shin that I got sticking up for my little sister–the boys who had thrown her bike into the ditch pushed me in on top of it when I went in after it, cutting my shin on the fender. Another one on my right thigh is from a dog bite when I was 7 or 8. I have the faintest ever scar on my left arm, up high, from a smallpox vaccine I got when I was a baby, before my family moved to the Philippines where my dad was stationed in the Air Force. Smallpox is a live vaccine; I got one pock as a result of that. I always thought it looked kind of like a flower.
I have scars from bug bites that I had bad allergic reactions to, and a scar on my face from a staph infection that developed in what I thought was just a monster zit. It ended up having to be cut open and drained repeatedly for over a week. My hands are a map of scars, from things like cat scratches, or scrapes you get in the course of living life. And my stomach is a ridiculous mess of stretch marks–scars I got from having my first pregnancy be with twins at 22.
My twins ended up with permanent scars themselves–the older one had surgery on his skull at 6 months to open up the prematurely fused growth plate on the back right side of his head. That’s quite the scar, going from ear to ear, in a bit of an S-shape. His younger twin brother had surgery on his spine at 17; that’s a helluva scar, running from the base of his neck, almost to his waist.
My twins’ scars will NEVER go away, unlike some of mine. I was in a car accident at 15, and split my forehead open in a couple of places. You’d never tell by looking at me at this point, though, because as I grew, those scars grew with me, and are now somewhere up above my hairline. The passage of time Healed me of those scars, like it’s faded some of my other scars.
But these that I’ve mentioned are just physical scars. There are other types of scars that last a lot longer–emotional scars. The loss of dear ones can permanently scar those left behind. Anything that cuts into our souls and hearts can, and often does, leave a scar that may never fade.
It’s September again. I hate September, and it’s because of the emotional scars I’ve incurred through about 15 years worth of Septembers. Hard, painful, life-changing things seem to happen in September for me, scarring me physically AND emotionally.
Saturday morning I opened up Instagram, and the first post on my feed was about the LOTOJA race. LOTOJA is a 3 state, 206 mile, one day bike race, that starts in Logan, Utah, runs through Idaho, and ends in Jackson Hole, Wyoming. Fifteen years ago, in September, I rode that ride with 4 of my best friends. It was the culmination of a year’s worth of training, and it was one of the best days of my life, even while it was crazy hard. And the next day, my biking was over, and my sanity went into a tailspin. It was the beginning of the end of my marriage; I was divorced by the end of March 2005.
You can read other of my blog posts to find out how my divorce went for me. Suffice it to say, the emotional scars are still with me. Even after all these years, those pains are still very real, very raw–hardly healed at all, it seems. Every year when the LOTOJA comes around again, I am reminded of that scar. The bruise is still there; it still hurts to touch. That was one of the really crucial things I learned in law school working with victims of domestic abuse–the physical pains, the physical scars, they healed faster than the mental and emotional ones. Those ones linger; they stick with the victims. The hurts are deep, and the scars are permanent.
I participate in a free legal clinic at CAPSA, our local domestic violence shelter. I consulted with a woman at my last clinic who reminded me how little so much of my emotional scarring has healed. Her divorce is scarcely final; mine was final 14 years, 5 months ago. Mine still hurts like hell. So I cried with her. Big, ugly painful tears. Maybe someday those emotional scars will have grown up, out of sight, like some of my physical scars have.
I can only hope.
Back to School!
I’ve been divorced over 14 years now. My baby was 2 when I stopped living with him; my ex moved away from where I’d lived with my kids, into different school boundaries, 3 or 4 years later. My children went from going to schools where the staff knew me, and knew who I was, to schools that didn’t know my ex was even divorced.
What difference does that make anyway? Well, for starters, there are all these forms that parents fill out at our annual school registrations/Back to School nights, or when they register kids in a new school for the first time. Included in the information a parent provides is the name/identity of both parents. Divorced parents typically have to provide evidence that they have physical custody of kids, and that the parent is entitled to enroll the kids in that school.
But what if the district doesn’t KNOW the parents are divorced? What if the custodial parent represents to the school that a step parent is a legal guardian/legal parent/The Mom (specifically in our culture with how we give kids dad’s last name), and doesn’t mention the other legal parent at all? The school likely will not know that there IS another parent who is entitled to information about the kids, or to pick the kids up at school, or Any of That.
Let me just tell you right now, up front, before school registration stuff has happened, how to avoid a fight and be a Decent Human who co-parents appropriately:
- Do not list your new spouse as the other Parent on the registration forms. Unless your new spouse has legally adopted your children, they are NOT a legal “parent” such that they are entitled to be listed as a Parent. They can be listed as an emergency contact, as an Other individual who can get information about the kids, but they are not the Parent.
To break that down into super-understandable language: “Mom” on the form is the Mom who was the Mom listed in the divorce; “Dad” on the form is the Dad who was the Dad listed in the divorce. That’s who you put in those spaces on the registration form. Period.
This is ESPECIALLY true if the other parent has joint legal custody of your child(ren). “Joint legal custody” means that even if the kids don’t live full time with that parent, that parent is STILL a legal guardian, entitled to information about the kids from the school, the doctor, the church, whatever, without having to go through you. - As the super intuitive follow up to #1, DO list your ex spouse as the other Parent on the form when you’re filling it out. Put their name, address, email, phone number, all of it. This way the school is aware of who they are, and can provide that parent information directly (in the case of shared legal custody), rather than going through you, when asked for it.
- Provide the school with a copy of your custody order that shows who has legal and physical custody of your kids.
- If you have sole legal AND physical custody of your children, STILL put the other parent in the “dad” or “mom” spot on the form, but make note that the other parent is not entitled to info, etc., without your permission… and provide a copy of your custody Order to back up that assertion. You can then put the step parent in the space of Other contact, as someone who can pick up the kids at school, get info from the school, etc., on your behalf. You are doing this because even if you have sole legal custody of your kids, your new spouse is NOT a legal guardian of those children. You can delegate these types of parenting duties, depending on your state/jurisdiction, but simply marrying a Dad doesn’t make you The Mom, and vice versa.
And there you have it–how to be a Good Co-Parent, and not get in a fight on the first day of school (or after, when it’s found out that you did something creepy, mean, and underhanded to your ex, that’s NOT in the best interest of your kids).
If you are the non-custodial (or less than sole custodian) of your kids, and if your ex is a SHITTY co-parent, and refuses to provide the school with your name and status as a parent, this is what can be done to remedy the situation:
- Go to the school office during school hours. Ask to speak with the principal or a school counselor. (Pro-tip: Call ahead and make an appointment so they’ll be there, ready to talk to you, when you show up.)
- You will bring with you: A copy of your court-signed custody order showing you have joint custody of some sort; your drivers license; your children’s birth certificates; AND if you’ve changed your name, you should also bring a copy of YOUR birth certificate, AND a certified copy of your court order for your legal name change.
- Explain to the principal or counselor that you are a legal guardian of your children, and request that they provide information to you as needed to help you support and parent your children. You’ll provide them with copies of all the documents you brought so they can keep those in the kid’s file(s) at school and know going forward how your situation works.
Repeat this process at every school any of your children attend–the elementary, the junior high/middle school, the high school. The schools don’t necessarily communicate amongst themselves, even in the same school district, and as long as you’ve already got everything collected in one place for the process (and probably already took time off work, etc), you might as well get it done all at once. Besides that, then the school administrators have met you in person, they know you’re on the up and up, and they will be more likely to help you help your kids in the future.
And this is the part where I IMPLORE PARENTS TO BE GOOD CO-PARENTS AND NOT JERK AROUND THE OTHER PARENT JUST BECAUSE YOU’RE A JERK. My kids have had a stepmother for 14 of the 14 1/2 years I’ve been divorced. I totally get how the dynamics of a blended family work, and how divorced parents interact. Your children are better off with ALL of their parents–legal and step–working together. Don’t cut out the other legal parent for the sake of your own ego, or because you don’t think they’re important. They are… Just ask your kids.
The QDRO: NOT the Horror Story You Think It Is
*At the outset, I should say that QDRO’s CAN be a tricky, but only insofar as there are rules that have to be followed, and they don’t actually apply to all the different types of retirement plans that are out there. And if you have a lot of different financial assets, or a bunch of different retirement accounts, or have a super complicated algorithm you’ve agreed to to calculate how much each person is getting, you’ll be dealing with a much more involved process. But for the rest of us, the thing that MOST affects the complexity is waiting for years to file one. But let’s not get ahead of ourselves…
~~ALSO–This article is not intended to substitute for legal advice. It is for information ONLY. Consult with an attorney in your jurisdiction for legal advice.~~
“QDRO” is an acronym for the term Qualified Domestic Relations Order. If you’ve been through a divorce where a retirement plan was divided as property, you’ve probably heard the term (though you may not have known what it meant.) Federal law was enacted decades ago to prevent a worker’s retirement funds from being garnished or otherwise taken away from that person, strictly because it diminished the person’s financial security after they retire (and could lead them to being dependent on government programs.) That law is found at Title 29 of the United States Code, Chapter 18. It’s called ERISA (Employee Retirement Income Security Act). Under ERISA, certain plan retirement accounts cannot be garnished, assigned, or otherwise “alienated” from the person who owns the account under the plan. EXCEPT. Except when there is a division of the account in a divorce, and ONLY if a Qualified Domestic Relations Order has been entered.
There is a difference between a “Qualified” Domestic Relations Order and a Domestic Relations Order. QDROs only apply to ERISA retirement plans. I don’t want to get into the weeds too much on what makes a retirement plan ERISA qualified (mostly because that’s really not my area of expertise). But as a general statement, the types of plans that are covered under ERISA are non-government pension plans, profit sharing plans, 401(k) plans, and certain employee stock ownership plans. The one most people will be dealing with is the 401(k).
So what are the Magic Legal Words you have to use to make a QDRO actually “qualified”? In a nutshell:
- The Order must clearly state the name and last known mailing address of the plan participant AND the name and last known mailing address of the Alternate Payee. And you MUST use that term—Alternate Payee—to describe the person who is getting a portion of the account funds.
- It must state the amount of money that’s being awarded to the Alternate Payee, OR
- It must clearly state how that amount is to be determined. (For Example: One half of the funds that existed in the account as of the date of divorce, or one half of the value of the account, less amounts that existed in the account as of the date of the marriage, with the date of marriage provided in the QDRO.)
- The Order must state how many payments are to be made to the Alternate Payee, or what time period the Order applies to.
And
- It has to specifically state what plan the Order applies to (Like “ABC Company 401(k) Plan”).
Notice that if the Order is making a division based on a calculation that you don’t have to actually do the math in the Order. The plan administrator does that for you; you just need to be totally clear on how it’s to be calculated. This is generally stated in the divorce decree, so you’d just need to copy the instructions from the decree into the QDRO document.
ALSO—to be “qualified,” the Order MUST NOT
- Require the plan to distribute any benefit that wouldn’t actually be available to the plan participant under the plan (like, it can’t say that the alternate payee gets payments from the plan before the participant would be allowed under the terms that already exist.)
- It can’t require the plan to pay out more money than it’s actually valued at (for instance, it can’t give someone $10,000 if the account is only worth $7,000.)
And
- It can’t assign benefits to a new alternate payee that were already assigned to a DIFFERENT alternate payee (think: second marriage/divorce, and the retirement account was already divided with the first wife…second wife doesn’t get ½ of the total, because ½ of the total is already first wife’s. Second wife could only get ½ of the husband’s portion that’s still in the account.)
It’s also a good idea to include the last four digits of the plan participant’s and alternate payee’s social security numbers and/or birthdates, just to clarify WHO these people are. And you need to state that the QDRO is being entered pursuant to a domestic relations order that was entered in a court with jurisdiction to make the division, and what the date of divorce is.
So you’ll need to wait to finalize the divorce before you prepare your QDRO, but you should NOT wait too long. See, that’s one of the things that really makes these more complex.
Let’s say that you’re divorced on October 1, 2019. The divorce says you’re entitled to ½ of the value of the account as of the date of divorce. So what happens if you wait 5 years file your QDRO, and in the meantime, the plan participant took a loan against the account, and now the total value is less than your half would’ve been as of the date you got divorced? You are still entitled to your half of the account as it existed on October 1, 2019, but how do you expect to get it? OR, you’re entitled to ½ of the value of the account as of the date of the divorce, plus any losses or gains that it’s experienced up until the date the account is divided….but the account has lost half of its value by the time you file the QDRO 10 years later (like when the market crashed in 2008, for example.) You just lost a huge chunk of what you’d have been entitled to but for your taking a decade to get the QDRO done. Or if there were gains…calculating the gains would be as to your portion only, not your ex’s. See? Much less straightforward.
So as far as actually preparing the QDRO goes, it’s not rocket science. Here’s an example of some basic language that would work to make your “domestic relations order” a “qualified” one (The Magic Legal Words):
- Parties: The parties hereto were husband and wife, and a divorce action is in this Court at the above case number. This Court has personal jurisdiction over the parties. The parties were married on [DATE], and divorced on [DATE the court signed the Decree].
- Participant Information: The name, last known address, social security number, and date of birth of the plan “Participant” are: [Name], [Address]; [social security number]; [birthdate].
- Alternate Payee Information: The name, last known address, social security number, and birth date of “Alternate Payee” are: [Name], [Address]; [social security #]; [birthdate].
- The Alternate Payee is the spouse or former spouse of the Participant. The Alternate Payee shall have the duty to notify the plan in writing of any changes in mailing address subsequent to the entry of this Order.
- Plan Name: The name of the Plan to which this Order applies is the [Name of the 401(k) plan] (hereinafter referred to as “Plan”), administered by [Company].
- Any changes in Plan Sponsor or name of the Plan shall not affect Alternate Payee’s rights as stipulated under this Order.
- Effect of this Order as a Qualified Domestic Relations Order: This Order creates and recognizes the existence of an Alternate Payee’s right to receive a portion of the Participant’s benefits payable under an employer-sponsored defined contribution plan that is qualified under Section 401(k) of the Internal Revenue Code (the “Code”). It is intended to constitute a Qualified Domestic Relations Order (“QDRO”) under Section 414(p) of the Code and Section 206(d)(3) of ERISA and the Retirement Equity Act of 1984, P.L. 98-397.
- Pursuant to State Domestic Relations Law: This Order is entered pursuant to the authority granted in the applicable domestic relations laws of Utah.
- Provisions of Marital Property Rights: This Order relates to the provision of marital property rights as a result of the Decree of Divorce between the Participant and the Alternate Payee.
- Amount of Alternate Payee’s Benefit [this paragraph should be customized to reflect the Decree as ordered in the parties’ case.]
- Commencement Date and Form of Payment to Alternate Payee: If the Alternate Payee so elects, the benefits shall be paid to the Alternate Payee as soon as administratively feasible following the date this Order is approved as a QDRO by the Plan, or at the earliest dated permitted under the terms of the Plan Benefits will be payable to the Alternate Payee in any form or permissible option otherwise available to participants under the terms of the Plan, except a joint and survivor annuity.
- Alternate Payee’s Rights and Privileges: On and after the date that this Order is deemed to be a QDRO, but before the Alternate Payee receives a total distribution under the Plan, the Alternate Payee shall be entitled to all of the rights and election privileges that are afforded to Plan beneficiaries, including, but not limited to, the rules regarding the right to designate a beneficiary for death benefit purposes and the right to direct Plan investments, only to the extent permitted under the provisions of the Plan.
- Death of Alternate Payee: [It’s a good idea to address what happens to the alternate payee’s portion if they die before all the funds are distributed].
- Death of Participant: [Spell out who gets the funds if the participant dies before they’re all distributed].
- Savings Clause: This Order is not intended, and shall not be construed in such a manner as to require the Plan:
- to provide any type or form of benefits or any option not otherwise provided under the Plan;
- to provide increased benefits to the Alternate Payee;
- to pay any benefits to the Alternate Payee which are required to be paid to another alternate payee under another order previously determined to be a QDRO; or
- to make any payment or take any action which is inconsistent with any federal or state law, rule, regulation or applicable judicial decision.
_____________________________________________________________________________________
I recognize that that language probably looks like just so much Gibberish to some–which would seem to make QDROs super hard to put together. HOWEVER, in my practice, I found that a LOT of companies that had employee retirement plans that could be divided by a QDRO already had their own QDRO template that they liked to use. I could contact the company’s plan administrator and ask them to email me a copy (or in the Bad Old Days, mail me a hardcopy I could then copy and type up), and it would have all of this information in it already, with all the Magic Legal Words & Phrases. I just needed to put in the specifics of the case I was working on. Generally they’d want to get a copy of the court-signed Divorce Decree before sending me the template, which is another reason you need to wait until the divorce is finalized to prep your QDRO.
Obviously there’s more to QDROs and separating out retirement accounts that exists in practice. But truly, if you use the terms required (or the template the plan administrator sent you), and get it done soon after the divorce is final, you’ve won half the battle. If your attorney tells you that they’re going to charge you a ton of money for a QDRO for a super-basic, one ERISA qualified retirement account division, maybe give it a try yourself. You don’t have to be an attorney to get the Magic Legal Words included in the Order…You just need to know what they are.
P.S.
To Note: NOT covered under ERISA are state and federal retirement/pension plans, military retirement, severance package type private employer benefits, and IRAs (Individual Retirement Accounts). YOU DO NOT USE A QDRO TO DIVIDE THESE NON-ERISA PLANS. They have their own types of forms/Orders, so don’t try to use a QDRO to divide them. I found that the State of Utah had a packet with information and a template to give instructions on dividing their state retirement plans, so again, it doesn’t have to be a horror story.
PPS.
For a bit more information on this topic, check out the IRS website, here: https://www.irs.gov/retirement-plans/plan-participant-employee/retirement-topics-qdro-qualified-domestic-relations-order
and from the Department of Labor, here: https://www.dol.gov/sites/dolgov/files/EBSA/about-ebsa/our-activities/resource-center/faqs/qdro-overview.pdf
Joint & Separate Debts in Marriage…What ARE you on the hook for?
*This is a Utah specific post. Division of and liability for debts of married people is not the same in every state. Check your own law for how this works if you are NOT in Utah.
In UCA § 30-3-5(1)(c) it states that within a divorce decree, the court shall include provisions spelling out who is responsible to pay joint or marital debts. Joint debts would be any that you and your spouse are both signors on–the debts in both your names. It’s common for married people to have joint credit cards, both their names on car loans, mortgages, etc. “Marital” debts, however, would include those that are in just one person’s name, but the debt was for a household purpose. UCA § 30-2-5, NOT in the divorce code, but just in the section about Husband and Wife (or more appropriately now, Spouses), talks about separate debts of married people. It says:
Reality Bites.
“(1) Neither spouse is personally liable for the separate debts, obligations, or liabilities of the other:
(a) contracted or incurred before marriage;
(b) contracted or incurred during marriage, except family expenses as provided in Section 30-2-9;
(c) contracted or incurred after divorce or an order for separate maintenance under this title, except the spouse is personally liable for that portion of the expenses incurred on behalf of a minor child for reasonable and necessary medical and dental expenses, and other similar necessities as provided in a court order under Section 30-3-5, 30-4-3, or 78B-12-212, or an administrative order under Section 62A-11-326; or
(d) ordered by the court to be paid by the other spouse under Section 30-3-5 or 30-4-3 and not in conflict with Section 15-4-6.5 or 15-4-6.7.
(2) The wages, earnings, property, rents, or other income of one spouse may not be reached by a creditor of the other spouse to satisfy a debt, obligation, or liability of the other spouse, as described under Subsection (1).”
UCA § 30-2-9, referenced above, defines what a family expense is that both spouses are liable for. Family expenses “are considered expenses incurred that benefit and promote the family unit.” And a creditor can come after BOTH spouses for those, even if one’s name isn’t technically on the contract that created the financial obligation.
So let’s look at some examples of what this all means in everyday life.
Let’s say you’re married, and you buy a house with your spouse. Maybe the house title and the mortgage are only in one spouse’s name, however, for whatever reason, but you’ve both lived in it your whole married lives. You run into some financial difficulties…maybe the spouse with the mortgage in their name loses their job. Can a creditor garnish the wages of the other spouse to cover the mortgage debt?
Under Utah law, Yes. While the house is only in the name of the now-unemployed spouse, it’s arguably a family expense–both of you live there, the debt was incurred to “benefit and promote the family unit.”
So how about another example…
I’m on my second marriage. Let’s say I buy a car for my child from a previous marriage to drive. It’s never used by my spouse; he’s not on the loan, he didn’t have anything to do with the kid getting the car, the kid doesn’t live in our house with us–totally a separate thing. I have a loan on that car my kid drives. Would my husband be liable to my bank to pay that debt if I defaulted on the loan?
Under Utah law, No. That car is NOT a family expense, by definition. It was not purchased to promote the family unit, or advance a family goal. It’s a straight up separate debt.
Whose horse is it, anyway…?
You could apply the statutory definitions about joint and separate debt to credit card debts as well. A credit card just in my husband’s name that he uses to buy groceries for the family, or to pay for a family vacation, is a credit card that the creditor could come after me for if the hubby stopped making the payments. On the contrary, a credit card just in MY name, that I use for my own business expenses, or that I paid for a trip just for me with, or that I use for my own Mad Money, if you will, would be entirely MY debt obligation–the creditor can’t go after my husband for that debt if I stop paying on it.
In Utah, the big thing to consider is whether the debt has been comingled. Let’s take that house example up there, and make a few tweaks to the story. Dan buys the house when he’s still single, and lives in the house alone until he meets Doug. Doug and Dan get married, they stay in the house as a married couple for 20 years, then Dan loses his job and stops making the payments. Could the mortgagor come after Doug for payment–garnish his wages, etc? In this case, they could. Because the house has lost its separate property-ness by being used by both spouses as their marital home.
Another tweak to the story of Dan and Doug: Let’s say that Dan and Doug get married, buy a home together, and Dan moves out of his premarital home. This time, however, Dan keeps the house he had before he got married, and rents it out. So long as he doesn’t mingle the funds from the rental with the funds that are Family Funds–rent doesn’t come into a joint checking account, Dan doesn’t use money from the joint checking account to make repairs, etc.–that house of Dan’s stays his sole obligation. The mortgage company can’t garnish Doug’s wages on that house if Dan quits paying, because it’s not a family expense.
The point with all this is that it’s NOT just an issue to address in a divorce. I did a blog post recently about division of debts in divorce; THIS article is about how debts affect your married life.
Issues around money and how it’s used in a marriage are one of the leading causes of divorce. Having a little knowledge about how your spouse’s debts can impact you is important–both for your own financial stability, and for the stability of the marriage. If you and your spouse have different goals or priorities in life, and money gets involved, maybe keep an eye out to protect yourself a bit. Because nothing will blow up a marriage like losing everything you have because of a spouse’s bad financial habits…..
……or your own, for that matter.
Dealing with Debt Collectors: A Peek at the Fair Debt Collection Practices Act (FDCPA)
For the full text of the Fair Debt Collection Practices Act, see the Federal Trade Commission’s (FTC) website. This is federal law; it applies in whatever state you’re in.
When I got divorced back in 2005 I was essentially starting from less than zero. I had a few credit cards in my name, and I used those to fill in the gaps in my income. Not necessarily the wisest thing ever, but you do what you’ve gotta do when you’re in dire straits. Even after law school I struggled with debt and keeping up; I got my degree after the crash in 2008, and jobs were scarce where I needed to live. I went into private practice working for myself, but getting paid can be very hard if your clients are as broke as you are–and mine mostly were. As a result, I got behind on some of my debts.
I’m not a unique case with that. Lots of people do; and when they do, the debt collectors start coming out of the woodwork. Sometimes the debts are legitimately owed. Sometimes, though, they’re not. So how do you deal with it when they’re not–or even if they are, but you aren’t sure if the amounts are accurate, or what the terms originally were? And what do you do about the incessant calling at all hours of the day and night, or the threatening letters?
He’s outta business…
This is where the Fair Debt Collection Practices Act (FDCPA) comes into play. The FDCPA was enacted to keep debt collectors from engaging in threatening, harassing, abusive practices as they attempted to collect money from people. There are limits to the hours during the day they can call, and if/when they can call you at work, and what their communications can look like. I’ll let you read through the section about communications (§805) yourself; you need to be aware of the rules. I want to get into the part about requiring a collections agency to validate a debt, and what you should be doing when you get collection notices. That’s in §809, Validation of Debts.
You will usually get a notice in the mail that a debt has gone into collections. However, it may not have enough details for you to know exactly what debt they’re talking about, or maybe you didn’t realize the debt was owed. The notice you get MUST tell you that you have the right, within 30 days of getting the initial notice, to write and request evidence of the debt, of the name of the original creditor if the debt has been sold, anything that would support the debt collectors position that you owe money. Your job then is to write them back and request all that information. Language for your letter could look something like this:
“I received a letter from you dated (Month/Day/Year) stating I owe a debt. I AM CONTESTING THAT DEBT. Please send me any evidence you have of the debt, including copies of any contracts signed by me, the identity of the original creditor (if you don’t recognize the entity collecting the debt), and an itemized statement of the amounts you claim I owe. Please cease contacting me regarding this debt until and unless you provide this information.”
The creditor is REQUIRED BY LAW to get you the information you’ve requested about the debt. But what if what they send you STILL doesn’t prove that the debt is one you owe? For example, what if you got divorced a year ago and a creditor is coming after you for a bill your ex incurred after the divorce was final?
I had this happen to a client; this is where you have to get Tenacious.
It’s quite likely that the creditor will provide evidence that a debt is owed. You may be totally aware that there’s an outstanding debt. That is NOT evidence that YOU owe the debt. So you write back again:
“I received the documentation you sent. I AM STILL CONTESTING THIS DEBT. The evidence you provided only shows a debt is owed. It does not show that I owe this debt. Please provide me with a copy of a contract or some other agreement that I signed indicating that I agreed to pay this debt.”
This is what Tenacious looks like…
It doesn’t always get them off your back; sometimes you end up filing complaints with the FTC, the attorney general’s office in your state, the Better Business Bureau…but I’ll tell you this: In my experience, when I have contested a debt that did not belong to me, and got Tenacious, I have not ended up paying it. Ever. The creditor drops it, and they don’t ding my credit. I’m making it hard for them–it’s taking them too much time to go after me. And you know what? It’s not my job to make it easy for a creditor to collect from me when I don’t owe them anything.
They go after the low hanging fruit. I’m not a fruit. Don’t you be either.
Getting Your Debt Together: Financial Info in Divorce (& Life)
I’ve done a couple of blog posts on property and debt division in divorce (and marriage), but what if you don’t know what your debts are? It is not uncommon for one spouse to hide debts from the other, or to get credit in the other spouse’s name. Depending on the state you’re in, you might be liable for debts your spouse takes on, even if you’re NOT named as a debtor on the obligation. And maybe you don’t have that great of a handle on YOUR outstanding debt. This would be a great time to get that figured out.
Your #1 best starting place for figuring out your debt is to get copies of your credit reports from all 3 main credit bureaus in the U.S. These are Experian, Equifax, and Transunion.
The Big 3 in the U.S.
Credit bureaus keep track of your credit history–the good, the bad, and the ugly–as well as names you’ve used, employers you’ve worked for, addresses you’ve lived at, phone numbers you’ve had, etc. Any agency you’ve ever owed money to (including your cellphone provider, the power company, etc.) can report to a credit bureau how well you did at paying your bill. Your current debts will show up in your credit report–that’s the important thing for this little exercise you’ll be doing to get your financial info together.
You can request your credit report for free from all three credit bureaus once a year. The Federal Trade Commission (FTC) has a button on their website that you can click into and go through the process of getting all 3. You may be able to download a PDF of your credit report; they may require you to mail in a form to get one or all of them. I just requested all 3 of mine; 2 of them I downloaded PDFs, and one I had to fill out the form for. You CAN use one form to get all 3.
This is what the form looks like…see the middle bottom–you can select all three.
Each of the credit bureaus ask different “verifying” questions online to get your credit report. They’re making sure it’s You asking for it. Some of the questions are more involved than others (Transunion asked a question that all I could think was “HUH?”, so I marked “none of the above.” Which turned out to be the right answer.) These are usually questions about where you’ve worked or if you have or have had a loan with a particular agency at some point.
You should be keeping up with your credit report regardless of whether you’re going through a divorce or not. That’s how you make sure you’ve not been a victim of identity theft. And since all kinds of circumstances call for agencies or individuals to pull your credit (like if you’re renting a home/apartment, or trying to buy a car), it’s best to be apprised of what’s there.
There are also apps out there for your smartphone that help you keep up with your credit. CreditKarma is one; Experian even has an app. Do a search on your app store for “credit report,” and you’ll see a few different options, some for free, some paid. I have a credit card app that has the option of getting your credit score as a click button at the bottom of the screen.
If you find errors in your credit report, you can communicate with the credit bureaus to get those corrected. In my experience, that can be difficult, but you still have to use their process.
So now you know. There is no excuse NOT to get informed about your credit. Ignorance is not bliss; get your credit reports and make sure you’re not ignorant about your finances.
Websites for the three big credit bureaus are here:
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