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.
Just so you know…
If you are the victim of sexual assault, and you have the courage to go to a hospital and ask to have a rape kit collected, PLEASE know that law enforcement will be more concerned with the fact that you are a victim of a horrible violent crime, and NOT with the fact that you’re under 21 and have alcohol in your system. Or that you’re in a state where pot is illegal (or you don’t have a green card) and you have marijuana show up in your system. Yes, the hospital may tell the police you tested positive for some illegal substances, but it is SO MUCH MORE IMPORTANT to get a rapist prosecuted than it is for the police to hassle you over so much less terrible things!
…and if you’re in Western Wyoming, and you DO get charged with one of these minor things after you’ve been tough enough to do the super difficult, invasive, important thing of getting a rape kit taken and reporting a rapist to law enforcement, get ahold of me. I’ll represent you in your justice court case for free. Because it is important enough to ME that you do what you need to to get a rapist off the street.
Don’t think this is just a women’s issue either. Men are also victims of sexual assault, though they report less often than women.
And just in case you were wondering, there is no statute of limitations in Wyoming or Utah on rape. Here’s a little more info on that. Keep in mind, though, that it’s much harder to prove in court that a rape occurred if you wait too long. (In Idaho, depending on how “rape” defined, there is either no statute of limitations, or you have 5 years from the date of the commission of the crime.)
Be brave. You’re not alone.
If you or someone you know needs help, call the Rape & Sexual Assault Crisis Line 1-888-421-1100, or you can contact CAPSA in northern Utah/southern Idaho, at 435-753-2500.
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:
Divided Debts in Divorce & Joint Creditors…Protecting your Credit Score
**This is a Utah specific post. There are different laws in other states about how creditors interact with divorced people, and there are different laws about how debt is divided and who is responsible for what, so make sure you check what the law is where you live.**
One of the big things we do when drafting a divorce is to divide up marital debt. Marital debt is all of the debt that either one of the partners has accrued during the marriage, for the benefit of the marriage. It could be in one person’s name, or both.
Yeah, it can totally feel like this…
In Utah, BOTH partners to a marriage are obligated on debts in EITHER party’s name incurred during the marriage IF the debt was for a “family expense” (see UCA 30-2-5.) Family expenses are defined at UCA 30-2-9(4), and include any expenses “incurred that benefit and promote the family unit.” Those do specifically include children’s educational expenses, like school fees, lunch money, etc, and kids’ medical and dental expenses (see UCA 30-2-5(1)(c)). Any contract entered into by one spouse in the marriage that does NOT qualify under that definition isn’t one that both parties are liable to pay. Otherwise, both spouses are on the hook. (And the separate debts thing deserves its own blog post…more on that later.)
There are some limited protections for a spouse who was not ordered to pay a debt that both parties are liable for (either because both their names are on it, or because it’s a family expense), but you’ve got to make some effort to get those protections. UCA 30-3-5 gives the divorce court authority to enter orders dividing debts in a divorce, and also explains (with UCA 15-4-6.5) what the parties need to do to make sure that they get those limited protections in place.
- The creditor must receive a copy of the decree/order that says which person is ordered to pay the debt. The statute, UCA 15-4-6.5, says “served” with a copy, so I’d do this certified return receipt at the post office if possible, or send a copy of the decree via priority mail. The point is to getting tracking information so you can prove you provided the creditor with a copy and that they received it. The divorce code says that an order requiring the person who is taking the debt to provide the creditor with a copy of the decree should be included in the decree, but honestly, I’d not trust an ex to keep creditors off my back….I’d do it myself anyway for debts that were ordered paid by the other person. (Pro Tip: I’d go to the court and get a certified copy of the decree to serve on the creditor. While you’re there, get a few certified copies. You never know when you’ll need one…)
- When you give the creditor notice, also include with that what your current mailing address is, and that of the other party. The creditor is then obligated to provide you with copies of all notices and billing statements, even if it’s not your debt to pay under the divorce decree. That keeps you informed of what’s going on with that account. Which is important, because
- A creditor cannot submit a negative report to your credit report IF they received a copy of the decree UNLESS they were sending you the notices of the account all along, including when it became delinquent, as well as the person who was supposed to be paying it. The point there is that you don’t get blindsided. You may end up having to pay the debt yourself to protect your credit score, but at least it won’t just be a huge surprise when a negative report shows up, dinging your credit. And you then file a Motion for Order to Show Cause with the court that entered your divorce decree to get the court to order your ex to pay you back what it cost you to take care of their debt. Plus your attorneys fees and court costs. (Pro Tip: Save. Everything. Get a file folder and put every document that comes to you in the mail from the creditor on that debt you aren’t supposed to have to pay. It’ll help with your Order to Show Cause, but also with your fight against the creditor if they screw up and report you to the credit bureaus without giving you notice.)
Do what you can to keep it from dragging you off the financial cliff.
So that’s the really quick and dirty story about how to protect yourself as much as you can from the other person’s court-ordered-to-pay-debts in your divorce. It’s not perfect, but it’s what we’ve got. Make sure you’re jumping through the hoops. Because trying to fight off a creditor can really suck, and so does paying your ex’s debts.
And now some Humor regarding debts…One of my favorite songs :).
Today.
Today I’m tired. I’ve been tired all week. My grandma died March 15th (The Ides!), and her funeral was last Saturday. And it was really a wonderful thing. I got to see family I haven’t seen in years; 24 of the 26 grandkids (my siblings and cousins) were there for the funeral, and it was so good to have all of them around again. The stories about her…I had no idea what an awesome young person she had been! Grandma loved flowers, and they were everywhere, and gorgeous, in her favorite colors. She had a beautiful casket with pink rose cameos on the sides…truly lovely. My grandma was 93. She had lived a very long, very full, but often very difficult, life. It was her turn to go. She was ready. And I’m happy for her.
But I’m tired. The funeral sucked the life right out of me. I cried more than I thought I had capacity to. And I’m still crying…but now it might be because my depression has punched me right in the face this week. I’m on the verge of tears constantly, for no reason. Except that my brain is Not Right. I keep doing all the things I have to do–going to work, doing my dishes, feeding my cats, making my bed, doing laundry–I even went to the gym last night–but I mostly just want to sleep this miserable Brain Fog off.
So forgive me my lack of enthusiasm and general malaise. It’s nothing personal. And I know it won’t last forever. But this week, today….My God, it feels like it will never end.
Alimony: How it “Might” be calculated
Note: THIS IS A UTAH SPECIFIC POST. The Financial Declaration that I reference in this article is the form that has been approved by the Utah courts for domestic actions in the state of Utah. Alimony calculation information is based on my experience in working Utah domestic cases, and may differ from your or another attorney’s experience.
Not that I think this in every case, but sometimes…
Alimony determination is not as cut and dried as child support calculation in Utah. Child support has an honest-to-God Calculator that the state uses to work the numbers out. Alimony doesn’t work that way. It’s generally worked out by the parties and the court, and is based on financial disclosures and the Financial Declaration that has to be submitted in all domestic cases.
In Utah, per Utah Rules of Civil Procedure Rule 26.1, parties to a domestic action must exchange Financial Declarations using the Court’s approved form. The form is NEW, EFFECTIVE FEBRUARY 25, 2019, and it was updated again in November of 2022. They’ve switched it up a little to add clarity that may have been lacking previously, and they include requiring disclosure of things like Venmo and other cash apps where you might be able to carry a balance in an account. Information about how to fill out the form, and what attachments need to be added are here. (The form itself is at the bottom of the page for that link, so scroll down.) Income amounts disclosed in the Financial Declaration are used to determine child support and alimony, and the assets information tells the court what property there is in the marriage to divide.
Ouch.
To determine alimony, the court will look at the monthly income for each party from ALL sources, the monthly budgetary needs of each party, and what the child support amount will be for the obligee parent (the one with the kids getting the payments), if the person asking for alimony includes the kids’ needs with theirs in their monthly budget. Income – Budget Needs = How Much Money is Left Over For Each Party. Alimony is appropriate if one person is doing better than the other, to some degree, and if the one who would be receiving it needs it to cover their monthly expenses. However, if your estranged spouse is making $12/hour at the convenience store, and that’s the only job they’ve ever worked, and you expect them to pay child support too, don’t count on getting alimony.
In statute, alimony is addressed at UCA 30-3-5(8) I’ve talked about these before in a blog post. The court “shall” take into consideration the factors listed in the code, including the needs of the recipient, and the ability of the payor spouse to pay, but don’t put too much stock on how much the court considers the payor’s needs–the Utah appellate court has stated that “equalization of poverty” is perfectly acceptable in making an alimony award. In those words. To quote Hansen v. Hansen, 325 P. 3d 864, 867 (UT App 2014): “We have consistently held that equalization of income — also termed ‘equalization of poverty’ — is appropriate in ‘situations in which one party does not earn enough to cover his or her demonstrated needs and the other party does not have the ability to pay enough to cover those needs.’ Sellers v. Sellers, 2010 UT App 393, ¶ 3, 246 P.3d 173….” Basically, the court has no problem forcing BOTH parties underwater, as opposed to just having one person short every month.
So now I’ve contradicted myself–I said that if your spouse can’t afford it, don’t count on getting it, and then I turned around and said the court could still order it anyway. Here’s my Real World take on the whole nasty mess: If your former spouse does not have sufficient income to pay alimony, you likely won’t get paid even if you have a court order saying you should. That’s reality. The court can talk all it wants about “equalization of poverty,” but reality is that you can’t get blood from a turnip. So keep that in mind, because none of the judges that deal with these alimony cases have to live with the judgment; it’s YOUR life that is going to be in constant conflict if you insist on an alimony award that your ex cannot pay.
Bottom line: Be realistic. Be sensible. And don’t lie on your Financial Declaration just so you can get alimony, or get out of paying alimony. I believe the Ghost of Alimony Awards Past will haunt you forever if you do. And you’ll deserve it.
PTA Mom to Lady Lawyer 