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Reconciling with Ex might not undo your divorce

When Robert and Jamie Semulka got divorced, Robert agreed to pay Jamie $40,000 in installments. He also agreed to contribute to their children’s college education. Two years after the divorce, the couple moved back in together. They stayed together for nearly a year before once again separating.

After the second separation, Robert refused to abide by the divorce agreement. He claimed that the couple’s reconciliation had nullified the divorce proceeding, and that by moving back in with him, Jamie had given up her right to enforce the agreement.
But the Pennsylvania Superior Court said, “Not so fast.”

In Pennsylvania, a divorce agreement is treated as a contract, the court said – and nothing in the contract said that it would stop being valid if the couple got back together.

Meanwhile, in New Hampshire, a couple got divorced after 24 years of marriage. They reconciled shortly afterward, and asked a court to undo their divorce.

But the New Hampshire Supreme Court said no. It said that while New Hampshire law allows judges to grant divorces, there’s nothing in the law that allows them to undo divorces. So while the couple can remarry, they can’t simply wipe the divorce off the books.
The law on reconciliation varies from state to state, but these two cases show that sometimes, what’s done can’t be undone.

Social Security merely "hypothetical?"

A divorcing spouse’s future Social Security benefits can’t be divided at divorce, says the Illinois Supreme Court.

In this case, the husband was participating in a government pension plan in lieu of Social Security, and a judge divided up his future pension payments so that his wife would get a share. The husband responded by arguing that if the judge could split his future pension benefits, the judge should also split the wife’s future Social Security benefits.

But the Supreme Court said that pensions and Social Security are different. The husband had a legal right to his vested pension benefits, and a judge could determine their exact value. By contrast, no one has a legal right to future Social Security benefits, because Congress can change the law at any time, reducing the benefits’ value or abolishing them altogether.

As a result, the court said, any attempt to place a value on the wife’s future Social Security benefits would be merely “hypothetical.”

Wife doesn’t refinance home; husband forces her to sell

It’s common for one spouse in a divorce to keep the couple’s home and assume the mortgage. Typically, the spouse keeping the home will refinance the mortgage in order to remove the other spouse’s name, so the other spouse isn’t jointly responsible for the debt. But what happens if the spouse fails to refinance?

This happened in a recent case in New Jersey. An ex-wife was awarded the couple’s home with the understanding that she would refinance it within nine months. She failed to do so – and then made several late mortgage payments. Because the husband’s name was still attached to the mortgage, his credit was damaged by the late payments, making it harder for him to get a mortgage on his own new home.

Read more: Wife doesn’t refinance home; husband forces her to sell

"Separation" not valid if living together

A wife decided that her marriage was over in 2006, but she didn’t actually move out of the house she shared with her husband until 2011. So does she have to share the assets she acquired between 2006 and 2011 with her husband?

Yes, according to the California Supreme Court.

This is an important issue, because many couples continue to live together for some time after their marriage is effectively over. They may do this to minimizethe impact of a separation on the children, or because they’re not ready to announce to the world that theirmarriage has ended. Often, the reason is economic – one spouse simply can’t afford to move out.

Read more: "Separation" not valid if living together

Woman loses out when ex-wife suddenly reappears

Barbara Sullivan considered herself happily married to retired pro football player Thomas Sullivan for two decades before his death. After he died in 2002, it appeared his NFL retirement benefits would leave her in stable financial shape. But four years later, a woman named Lavona Hill suddenly stepped into the picture, claiming she was Sullivan’s wife and was entitled to all the benefits. As it turns out, Sullivan had previously been married to Hill. Several years before Sullivan married Barbara, he separated from Hill. But the couple never actually got divorced, which meant that Sullivan and Barbara – who was completely unaware of Hill’s existence – were never technically married in the first place.

Read more: Woman loses out when ex-wife suddenly reappears

Divorce Dispute over Life Insurance

The California Supreme Court recently handed a big victory to Frankie Valli, the lead singer of The Four Seasons, in a dispute over life insurance with his ex-wife Randy. While they were married, Frankie bought a life insurance policy and named Randy as the sole owner and beneficiary. A year later, the couple divorced. Randy claimed that since she was the sole owner, she should get to keep the entire policy, which was worth $365,000. But Frankie argued that even though Randy was named as the sole owner, the policy was purchased with joint funds, so half of it belonged to him. The California high court sided with Frankie. It said Frankie could have the entire policy, as long as he paid Randy $182,500 for her one-half share. After the court victory, it’s not clear whether Frankie warned Randy that “Big Girls Don’t Cry.”

Divorce can’t be delegated with ‘power of attorney’

When 80-year-old Beverly Marsico decided to divorce her 84-year-old husband Louis, Louis had no interest in participating in the proceedings. He asked his daughter by a previous marriage, whom he had designated as having power of attorney, to appear in court on his behalf. But Beverly objected, and a New Jersey judge ruled that Louis had no right to avoid participating in his own divorce proceedings, even if he wanted to.

The judge said that the participation of the actual parties in a divorce is critical for determining the facts and resolving all issues equitably. Also, allowing spouses to avoid participating would enable them to avoid disclosure of key information and shield themselves from cross-examination, the judge added. Leaving everything to a third party who doesn’t necessarily know the real truth about the matters in dispute would prevent the other spouse from receiving a fair hearing.

Read more: Divorce can’t be delegated with ‘power of attorney’

Man claiming to be father cannot obtain genetic test

A Maryland woman had a baby that was conceived when she was still married, but wasn’t born until after she got divorced. After the baby was born, a man she knew claimed that he was actually the father of the child – and not the woman’s ex-husband. He demanded a genetic test to prove his paternity. The woman refused, and the case went to court.

The result? The man lost. The Maryland Supreme Court decided that whether the man was entitled to a paternity test depended on what was in the best interests of the child. And in this case, the man was unable to prove that it was in the child’s best interests to possibly be declared illegitimate. While the man’s parental rights are important, the court said, they’re not as important as the child’s rights.

Military Divorces and Spouses' Rights

Life in the military can be extremely stressful on a marriage. Deployments can keep a spouse away for months at a time, periodic relocations at unpredictable intervals can be very disruptive to family life, and the psychological stress of servicing in a combat zone can cause problems after a spouse returns from active duty.

It's no surprise that, according to a Defense Department survey, military divorces have increased dramatically in the years since September 11, 2001. 

Like a military marriage, a military divorce can be very complicated. It can create logistical, geographical and legal issues that wouldn't even occur to most civilians.

For instance, how do you serve divorce papers on a spouse stationed overseas, perhaps in a war zone? Serving papers is a critical step in the process, but an agent who would normally serve the papers might not be allowed on a military base for security reasons.

The rules in foreign countries often depend on treaties and military agreements with the specific country, so they’ll vary from place to place and are subject to frequent changes. In some cases, divorce papers even have to be translated into the official language of the foreign country – even though they’re being served on someone who speaks English!

Read more: Military Divorces and Spouses' Rights

Alimony Eliminated by Debt

Even though an ex-husband was earning far more money than his wife and the wife needed more money to get by, a divorce judge couldn’t order alimony if the ex-husband couldn’t reasonably afford it. That’s the word from the Florida Court of Appeals.

In this case, Matthew Mills and his wife Tracey – who had one child – ran up significant debt during their marriage. When they decided to divorce, they were each in difficult financial straits and had debts greater than their incomes. In addition to determining custody of the child, the divorce judge ordered Matthew to pay alimony, based on the fact that he had a much higher income than Tracey and that she had a need for it. 

But Matthew appealed, arguing that due to his debts and his child support obligations, he had no ability to pay alimony. The Court of Appeals agreed with Matthew. It said that a divorce judge isn’t required to make a couple’s financial situations equal, and that putting the husband into an even deeper financial hole than he was already in would do little to help the wife.

Children’s Last Names During Divorce

Couples who are separating sometimes fight over what their children’s last names should be. As a general rule, the answer is whatever is in the children’s best interests. But deciding what those interests are isn’t always easy.

For instance, when New Jersey dad Paul Emma looked through his children’s school records, he was surprised to discover that his ex-wife, Jessica Evans – who had primary custody – had changed their last name from “Emma” to “Evans-Emma.” He took the case to court, trying to undo the name change. Evans retaliated by asking a judge to change the children’s last name again, this time to simply “Evans.”

The judge ruled that since Jessica had primary custody, it should be assumed that whatever name she chose was in the children’s best interests.
But Emma appealed, and the New Jersey Supreme Court said, in effect, “not so fast.”

Read more: Children’s Last Names During Divorce

Dating Before Divorce is Final?

It’s normal for people who are getting divorced to want to start dating other people as soon as possible. After all, it may have been a long time since they were in a good relationship. They want to experience the hope and excitement of something fresh and new. But if you’re still going through divorce proceedings, there’s a lot you should think about before you start playing the field. That’s because – depending on the circumstances – dating can be very detrimental to the divorce process. Here’s a look at some of the problems that dating during divorce has the potential to create:

A bitter ex-spouse. If one spouse is actively dating, it can cause very negative emotions in the other spouse. The other spouse may become angry or hurt, and may also suspect that you were dating before the split, and thus that you were responsible for the break-up.

Read more: Dating Before Divorce is Final?

Coordinating personal injury claims with divorce

If you’ve been injured recently, and have filed (or are thinking of filing) a personal injury lawsuit – but you have also filed (or are thinking of filing) for divorce – it’s extremely important to coordinate the two types of claims. That’s because the way the personal injury lawsuit is handled could have a big effect on how much of the proceeds you’ll have to share with your spouse in the divorce proceedings.

At a minimum, you should be sure to tell your personal injury lawyer all about the divorce, and tell your Haufler divorce lawyer all about the personal injury claim. The rules differ a great deal from state to state. For instance, in some states, it makes a big difference whether you were injured before the divorce was filed, or while it was pending, or after it became final. In others, it makes a difference during which of those periods the lawsuit was filed or settled.

A personal injury award often consists of multiple components, and those individual components can be treated very differently in a divorce. For instance, an award can include payments for:

  • Your personal pain and suffering as a result of the injury,
  • Your lost wages, if you missed time at work,
  • Your medical expenses,
  • Your spouse’s losses as a result of your injury, and
  • Property damage (such as if your car was totaled in an auto accident).

As an example, a court might decide that your pain and suffering is personal to you, but the car was marital property if it was jointly owned, and your lost wages and medical expenses should be divided as though they were ordinary wages and bills that came in during the marriage.

You might be able to get a better net result if you coordinate the filing or settling of the lawsuit with the timing of the divorce. You might also be able to settle the lawsuit more favorably by allocating more of the proceeds to items that are less likely to have to be shared with your spouse.

College tuition help conditioned on family counseling

A father who has an estranged relationship with his teenage son can refuse to contribute to the son’s college expenses unless the son agrees to participate in family counseling, according to a New Jersey court.

The father and mother had divorced years earlier, and the divorce agreement said that both parents would contribute to the children’s college expenses based on their ability to pay at the time the children were ready for college.

After the divorce, the father’s relationship with the oldest child soured. The father wanted to make things better, but the son refused to speak to him. The son enrolled at a private out-of-state school that cost $22,000 a year after financial aid. The son (and the mother) demanded that the father contribute to the cost. But the father refused to pay anything as long as the son wasn’t trying to have a relationship with him.

The court sided with the father. It said that while a parent could be required to pay for college despite an estranged relationship – especially if the parent were at fault – this case was different because the son was the one who refused to participate in counseling.

According to the court, a parent-child relationship is “a two-way street,” and the son’s behavior was “fundamentally unfair.” The court made two other interesting rulings. One was that the son couldn’t dictate how much the father had to pay based on where he chose to go to school. The court said the father – who had a modest income – should only have to pay what he could reasonably afford, and if that amount didn’t cover the son’s college costs, the son would have to attend a less expensive school.

The court also noted that there were two younger children in the family, both of whom were also planning to attend college. It said that the amount the father had to contribute to the oldest son’s education should be reduced to reflect the assumption that the father would contribute equal amounts for the other children.

Husband’s increased pension payments may end alimony

When Michael and Kathleen Krupinski divorced back in 1990, a court awarded Kathleen one-third of Michael’s eventual pension benefits as a public school teacher, once he retired and began receiving the payments. Michael was also ordered to pay Kathleen $100 a week in alimony.

Michael continued his education after the divorce, and ultimately became a school administrator, which significantly upped his salary and the value of his pension. By the time he retired in 2010, he was making almost three times the salary he’d been making as a teacher, and he started receiving much higher pension payments than he otherwise would have.

Because of this, Michael went back to court and asked to have his alimony obligation terminated. A judge initially sided with Kathleen, noting that Michael was still able to afford the alimony payments.

But on appeal, a court said that in light of the increased pension benefits, the alimony could be ended if Kathleen didn’t still need it to maintain the lifestyle she had enjoyed during the marriage.

Redo beneficiary designations if remarrying

We’ve often reminded people that it’s important to update all your beneficiary designations after you get divorced – including wills, life insurance policies, bank and brokerage accounts, retirement plans, and so on.

One thing that gets less attention, but is also very important, is to change your beneficiary designations again if you remarry. Failing to do so can create problems if something should happen to you unexpectedly.

For instance, a New Jersey man named Michael Fox bought a $100,000 life insurance policy in 1992 and named his wife as the beneficiary. After he got divorced, he changed the beneficiary designation, naming his sister instead. Michael remarried in 2012. His new wife, Evanisa, was a Brazilian national. As part of his sponsorship of Evanisa’s citizenship application, Fox agreed to support her at a minimum of 125 percent of the poverty level. But he never updated his life insurance policy, and he was killed a few months later in an automobile accident.

Evanisa went to court. She claimed that it would be very difficult for her to support herself without the life insurance proceeds, and that the court should presume that Michael meant to change the beneficiary to her. But the court said no. It ruled that unless Michael affirmatively changed the beneficiary to Evanisa, the money should go to his sister instead.

Interestingly, New Jersey has a law that says that if a person names a spouse as a beneficiary in a life insurance policy and then gets divorced, the beneficiary designation is automatically revoked. Evanisa said the reverse should also be true – if a person gets married, it should be assumed that the new spouse becomes the beneficiary. But the court said that’s not how the law was written.

Wife who hid lottery winnings loses in divorce

When you’re going through a divorce, one of the biggest fouls you can commit is trying to hide assets so you can keep them for yourself. It’s usually easy to get caught, and you can be severely punished for not being truthful.

For instance, a California woman named Denise Rossi was already contemplating divorce when she and several co-workers won a $6 million jackpot in the state lottery. She never told her husband about the winnings, because she didn’t want to have to share them with him when they got divorced. Once the divorce proceedings began, she didn’t tell the court about them either. Instead, she had the lottery checks sent to her mother’s house.

But two years after the divorce was settled, a company that offers lump-sum payments for lottery winnings mailed an offer intended for Denise to her ex-husband’s address by mistake, saying it could help “lottery winners like you.”

Once the husband realized what had happened, he went to court, presumably hoping to get a fair share of the prize. But the court decided to punish Denise for not revealing the truth – and it ordered her to pay the entire amount of the lottery winnings to her ex.

Student loan debt complicates divorce settlements

As the cost of higher education continues to skyrocket, so does the amount of student loan debt that graduates are saddled with going forward. Some 70% of students who earned bachelor’s degrees in 2012 had student loans, and these loans averaged a startling $29,400. Many students who have also taken out loans for graduate or professional degrees are now leaving school with debts in six figures.

According to the Federal Reserve Board, Americans now owe more money on student loans than they owe on auto loans or credit cards. So what happens when couples with significant student loan debt divorce?

Who gets stuck having to pay off the bill? You might assume the answer is simple – the spouse who borrowed the money for school has to pay it back.

Read more: Student loan debt complicates divorce settlements

Divorced mom sued for lying about who was the father

A man who claimed his ex-wife lied to him when she told him he was the father of her child can sue for damages, the Tennessee Supreme Court recently ruled. The woman was already pregnant when the couple married in 1991. The husband claimed that she assured him at the time that he was the father. When the couple divorced nine years later, the husband was ordered to pay child support. But he sued his ex-wife after learning from DNA tests that he was not in fact the boy’s biological father. He claimed his ex-wife knew all along that another man was actually the father. The court approved a $25,000 award to the husband for “intentional misrepresentation of paternity.” It rejected the mother’s claim that the award amounted to a retroactive change in child support.

Which spouse should get the house?

HouseAside from child custody, the most emotionally charged issue in a divorce is often who gets to keep the house. For most couples, a house is their most valuable asset, and it has an enormous symbolic value as well.

Sometimes the best plan is to try to keep the house. But not always. For many divorcing spouses, it’s smarter overall to allow the other spouse to keep the home (and the mortgage), and receive other assets instead. And some couples are better off if they jointly sell their home.

Here are some things to consider:

The mortgage. If you keep the house, your spouse will almost certainly want to take his or her name off the mortgage in order to avoid being potentially liable for the debt. That means you’ll likely have to refinance the mortgage in your own name.

Read more: Which spouse should get the house?

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