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.

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.

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.

1.  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…)
2. 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
3. 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.

September

It’s beautiful, really…

September has been my least favorite month for a lot of years now.  Bad things, hard things, miserable things, challenging things, depressing-life shifting-exhausting things happen in September. Every September.  For more than a decade.

This September, my middle child left home to serve a religious mission in the Farmington, New Mexico area.  He’ll be gone for the next 2 years.  When he returns, he’ll go straight to the university, out of town.  He’s gone, basically, and will not be Home with me again.

My oldest child, who had been living with me during the month of August, moved out of state–I drove the Yukon hauling the trailer with all (most) of his belongings myself to get him there.  He’s not planning on moving back to Utah any time soon, so this is effectively a permanent move.

My husband has been gone most of the month with work and then elk hunting, which meant these first weeks of going from 4 kids that drop in or live with me constantly to 1 child with me part of the time and the drop-ins dropping off sharply, I’ve been largely on my own.

A dear friend lost his father, quite unexpectedly, and has struggled personally through the month prior to his dad dying–and, obviously, since as well.

My anxiety and depression have been through the roof.

Basically, it’s been a September.

I am thrilled that we are putting this month to rest in a couple of days.  I’ve had enough of it.  I will breathe a sigh of relief when September is Done.

Green Day got it right….

Useful New Blog I’m Linking To

I came upon a useful new blog today while reading a very interesting article on protective orders and what constitutes violating one in this age of online appearances, social media platforms, and etcetera.  (That article is here.)  The new blog  is called Technology Safety, and there is a link to it on the right side of this page, under My Links.  There is a lot of good information there regarding ways to stay safe with all of the new technological advances that make spying on/stalking someone so much easier.  Check it out.

Protective Orders: What They’re NOT for

While I’m not in private practice anymore, I do take the occasional one-off type thing: those cases that will have a one time court appearance or are strictly consulting, or are basic estate planning–that sort of thing.  Today I had a hearing defending a client in a motion for a permanent protective order.

I truly believe in protective orders.  When they are needed, one should ABSOLUTELY get one.  That said, I ALSO feel strongly that protective orders should not be abused.  If one is simply trying to control another person, or force a custody order, or simply to “get back” at another person for some perceived slight, getting a protective order is absolutely inappropriate.  Personally, I think people who get ex parte protective orders for the wrong reasons should have to pay the other person’s costs and attorneys fees when the motion and temporary PO are dismissed.  And maybe have some sort of sanction thrown at them by the court, like being ordered to do community service.

My client this morning who I was defending was in a situation where the protective order was being used as a tool to try and control and manipulate him.  The Petitioner in this case, his baby mama, was not in need of protection by the court.  They’re not even Utah residents–they’ve both been living in California up until she took off and came back to Utah, taking their tiny baby daughter with her.  He filed for custody in California a week or so after she left, when it became apparent that she couldn’t be trusted to allow him contact with his child.  And 3 weeks later, after dodging–but finally being served– with the California court papers, Baby Mama filed for a protective order.

Long story short, I won this one.  The protective order motion was denied, and the ex parte/temporary order was dismissed.  The reason I won is because my client was excellent at documenting stuff–he saved all the texts, emails, and Facebook messages the two had exchanged.  And he was totally upfront with his less-than-perfect behaviors.  He had also not been abusive to her–in fact, SHE had assaulted HIM; SHE had been the one threatening HIM. And in the end, we were able to prove that Baby Mama did not meet the requirements to get a protective order against my client.

Gifts from my client :).  He was very grateful, and very nice. The best kind of client to have.

I like to win.  A lot.  And when that win can knock down what I see as abuse of  protective orders, and protect a person from losing constitutional rights in a quasi-criminal action, all the better.  I hate people who cry wolf.  They truly degrade the value of the protective order, which hurts everyone out there who honest to God needs one.

It’s Not Just “Being Worried”: Anxiety

I’ve mentioned a few times that I’ve struggled with some mental health issues.  I’ve been diagnosed with generalized anxiety disorder (GAD), panic disorder, major depressive disorder (MDD), and dysthymia (persistent long-term depression).  Mental disorders can be debilitating, especially when you ignore them, pretend they don’t exist, and refuse to address them as you would any other illness.  I closed my private law practice in large part because my anxiety had gotten so bad that I was absolutely terrified of checking my email, answering the phone, TALKING to anyone…Getting out of bed was a major accomplishment every day.  Was it all in my head?  Yeah, just like asthma is all in your lungs, and scoliosis is all in your spine.  

On my better days, I venture the thought of going back into private practice…until the panic hits, and I start getting short of breath just thinking about it.  And I AM medicated.

It’s not something that I can fully control, though I have learned to cope a little better.  My work now is considerably less stressful, and I’m getting paid regularly (!), something that wasn’t happening when I was in private practice, which alleviates a lot of general life stress.  I’m in a much better place.

I’m not the only one who has had their life hijacked by anxiety…Meet Jalen Moore.

 

I work with Jalen’s mom; my kids were wowed by Jalen’s basketball talent in high school.  He’s gonna be just fine, because he’s smart enough to face HIS anxiety head-on, and work toward responsible management of it.  And like any illness, any physical problem, accepting that it’s a REAL problem, and not a weakness that reflects badly on one’s character is where you start in getting healthy again.

The upshot is a panic attack can feel like you are dying…Nothing to worry about, right?

 

For a little musical insight, I give you the Black-Eyed Peas: Anxiety.  With the lyrics, so you can see and FEEL a little what this is like.