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Who Moves Out in a divorce?

Who Moves Out of the Marital Home During Divorce, and When Do They Leave?

A question that comes up over and over again in my line of work as a divorce attorney is “When can I move out?” Or put differently, “When can I get my husband to leave?” Maybe the tension is so thick you can cut it with a knife. Maybe your children are experiencing screaming matches followed by long bouts of silence. You may find yourself unable to think straight—to figure out what your next steps should be and how to begin a new life. Or maybe, there are even elements of abuse in your relationship. I get it. You want peace. You want answers. And finding out who moves out of the marital home during divorce can seem like the first step toward solving these problems.

But the question, when can a spouse move out, is not a simple one to answer.

If you have children, the upside is that I recommend you do nothing until you’ve spoken with an attorney. Unless, of course, there’s an emergency and you need to remove yourself from the situation for your safety. You don’t want to affect your claim to custody or marital property.

It’s complicated. Divorce laws vary state to state, but for this article, I will reference the laws of New York.

What does the law say about who moves out of the marital home during divorce?

New York courts are often reluctant to award one spouse “exclusive use and occupancy of a home.” In nonlegal speak, that means ordering one spouse to move out of the marital home—something the courts can do no matter which spouse’s name is on the deed or lease. The courts are especially reluctant to do so without a finding of violence or “marital strife.” When the safety of household members or property isn’t at risk, the courts require that your spouse has a place to live before moving out. That’s not to say that the courts oppose removing one spouse from the marital home. They often prefer spouses separate. With that said, the decision isn’t made lightly. Judges have seen it all. They haven’t succumbed to the popular belief that it is simply better to separate you and your spouse. They understand that what is best for one family isn’t best for all.

What if your safety is at risk?

But what if you can’t wait for your lawyers and the courts to battle it out? There has always been the understanding that in any divorce, separation, or annulment, the courts can’t require a spouse to move out during court proceedings unless taking such a drastic action is necessary to protect the “safety of persons or property.” To take action, courts require evidence, anything from a testimony to something physical such as photos, medical or hospital records, and broken items.

If your spouse has committed a criminal act and needs to move out immediately, you can get a temporary order of protection (in other states these are often called restraining orders) from Criminal Court, Family Court, or Supreme Court. In fact, what many may not realize is that a person isn’t limited to a single court when looking to get an order of protection. You can get orders from more than one court for the same act. If even one of the orders of protection granted is a “full stay away,” then your spouse won’t be able to live in the same home as the people listed on the order.

So, what if it’s your sanity (not your safety) that’s at risk?

Anger, resentment—they can chip away at any remaining civility between partners. The courts understand that staying together under one roof can be damaging for reasons that have nothing to do with violence. But again, you’ll have to provide evidence for “marital strife” (and your spouse will need a new place to live) before you can expect the court to make anyone move out. Before you provide evidence, you’ll have to file a petition in Family Court or a motion in Supreme Court for an order of protection in which you request a full stay away. In Supreme Court, you can file a motion for exclusive use and occupancy without requesting an order of protection.

And what about the children?

When it comes to children, how can fighting parents living in the same home be in their best interest?

In 2017, at least one judge addressed this concern. In one of the first judicial decisions to address the impact divorcing couples remaining together in the marital home has on their children, Judge Richard A. Dollinger of Monroe County found “that existence of a hostile home environment, during a divorce, runs contrary to the best interest of children.”

What is the benefit of having a court order your spouse to move out?

The obvious benefit is that you’ll finally have peace of mind and remove yourself from an otherwise difficult living situation. Some parties , however, often see a court order for one spouse to move out as a tool to gain an edge in custody battles. When both parents live together with their children, neither parent can claim to be the primary residential parent. When one spouse moves out, the parent who spends more time with the children will be entitled to child support. If you and your spouse share the children’s time equally, then the parent who earns more may end up paying child support to the other parent.

How do finances affect the court’s decision about who moves out?

The elephant in the room is the question of whether you and your spouse can afford to live in two separate homes. It is crucial that everyone involved reduces the effect of divorce on your children. Make sure you always work toward separating in a fair and reasonable manner. It can be more expensive and emotionally damaging for children to be in the middle of their parents’ fighting. To be assigned their own attorneys or go through forensic evaluations and therapy.

Divorce is complicated enough already. As a parent, it’s your duty to pick the battles you choose to fight with your soon-to-be Ex wisely. Who moves out matters less than how and why they move out.

Randi L. Karmel has had her own Matrimonial and Family Law practice for 19 years and been an attorney for 25 years. She practices in the Criminal, Family, and Supreme Courts in New York. Randi L. Karmel, PLLC focuses on matrimonial and family law litigation and settlements. Her practice consists of preparing and negotiating agreements from prenuptial agreements to stipulations of settlement: divorce, abuse, neglect and orders of protection matters, custody, parenting time, child support, maintenance, equitable distribution, and separation. She is also certified to represent children. For more information on how Randi might assist you with your concerns, visit her website or call 212.755.0224.

 

Since 2012, SAS for Women is entirely dedicated to the unexpected challenges women face while considering a divorce and navigating the divorce experience. SAS offers women six FREE months of email coaching, action plans, checklists and support strategies for you, your family, and your future. “Divorce can be on your terms.“– SAS For Women”

learning how to hire a divorce lawyer

How to Hire A Divorce Lawyer (The Right One for You)

Whether you’re contemplating getting a divorce or ready to act, your first step is NOT to make any immediate decisions but to get educated on what the divorce process looks like and how to hire a divorce lawyer.

You have choices, and you need to understand what they are. Divorce laws can change quite a bit once you cross state lines, so the best place to start your research is a search engine like Google. Type in keywords like “divorce laws in [your state]” to learn how getting a divorce will affect your life. Spend time learning about different divorce models. Decide whether you’ll work with a mediator or an attorney, for instance. Ask yourself which model is right for you, your spouse, and your circumstances.

After you’ve done a little fieldwork, it’s time to meet with the experts.

Divorce isn’t as simple as understanding your rights. Divorce is a line drawn in the sand, and once you pass it, many aspects of your life that go beyond your marriage will change. So yes, learn all about your rights. Find out what you are entitled to. But then drill down further.

Let’s face it—when it comes to divorce, especially when children are involved, many women are most concerned about two things: money and custody. What custody decisions will I have to make? How will I support myself? How will I pay the bills, put food on the table, and be a good mom all at the same time? All on my own, no less? That’s where a financial advisor comes in. Or even better, a certified divorce financial analyst who will explain exactly what will happen to your money, assets, and—you guessed it—debt.

Again, divorce is not simply a legal or financial issue but a life-changing event that throws even your sense of identity off balance. It’s crucial to seek guidance from someone who can break everything down for you without losing focus of the big picture. Someone who will listen when you tell them where you want to be, and then point you in the right direction. But who do you turn to for this kind of guidance? Who is going to give you vetted and appropriate referrals based on your actual situation?

Hiring a divorce coach

Of course, we believe the best professional suited for this role is a divorce coach because they can teach you about divorce (like how to hire a divorce lawyer) but above all, how to get through divorce the healthiest way. A divorce coach can help you overcome the emotional challenges as well as the practical ones, and by doing so, they help you save money and time. Mistakes happen, but with a divorce coach, the chance of those mistakes occurring is significantly reduced.

Divorce coach or not, it is critical to have a guide—someone who knows there is an end in sight because they’ve been in your shoes. They’ve experienced the self-doubt and second-guessing, the isolation and fear. It’s even more critical this person understand the journey of a woman, as they’ll be the one who helps you navigate and set yourself up for your best life.

If reaching out to a divorce coach is a step you’re not quite ready for, reading these articles about contemplating divorce may help you answer the questions you have and learn what else you should consider before you even start figuring out how to hire a divorce lawyer.

Shopping around for a divorce lawyer

Now if you’re still with me, then you might be ready to take the leap. You may even be shopping around for an attorney (as you well should). But what should you be looking for? What questions should you ask? Below are a few tips.

  • Get vetted referrals and consider them carefully
  • Find out if the lawyer specializes in family law
  • Find out if they are a skilled negotiator
  • Ask if they know the other lawyer(s) involved and how established the relationship is (this will help with negotiations)
  • Ask yourself if there’s chemistry between you and any potential hire (this means understanding your issues and values—making sure you feel heard
  • Ensure your lawyer can explain your “best and worst case scenarios”
  • Find out if they settle often
  • Ensure you understand all costs (the retainer, hourly rate, and payment structure)
  • Consider asking a friend or family member along to take notes and give you feedback after any meetings

Hiring the right divorce attorney or mediator is no easy task. But remember: you owe it to yourself to find the right representation. Don’t be afraid to ask a lot of questions—just make sure they’re the right ones. And interview more than one professional (remember, it’s your right to shop around).

Be sure to read our article on what questions to ask a divorce attorney for more on how to hire a divorce lawyer, how to prepare for that meeting and how to pay your divorce..

And, of course, once you have hired a lawyer make sure you don’t make the mistake so many do of “misusing” her.

What else MUST you know about how to hire a divorce lawyer?

  • No one is ever really happy with her divorce lawyer because both parties always have to compromise
  • Try to settle out of court by putting your emotions aside and asking yourself if what’s upsetting you will still be important in ten years?
  • A good settlement is one in which neither client walks away entirely happy. Begin the process of managing your expectations, realizing what’s truly nonnegotiable, and understanding what all these decisions mean for setting up your next, better chapter of your life.

 

Whether you’re navigating the experience and aftermath of divorce, or recreating the life you want, one thing that makes a big difference for women is choosing not to do it alone. Since 2012, smart women around the world have chosen SAS for Women to help them through this emotional and often times complicated experience. Learn how we can help you in a free, confidential consultation.

 

Tee shirt that says Love Don't Pay the Bills

3 Steps Women Can Take to Get Smarter about Money

Too many women bury their head about money matters

I have banged my head on my desk over and over again, just not understanding why women still place money on the back burner. Overall, women just don’t make money issues a priority in their lives.

As a financial advisor and a woman, I feel it’s important to empower women through free financial education. Along the way, I have discovered that it’s a huge challenge to try to convince women that they need to know more about their money.

Don’t get me wrong. Women do think about money. Our gender is very good at worrying about it all the time.

According to the American Psychological Association report “Stress in America,” women are much more stressed than men, and our biggest stress is money. Dr. Helen Coons, president and clinical director of Women’s Mental Health Associates, explains. “It’s the socioeconomic and relational context of women’s lives here in America,” she said. “A high percentage of women have dependent children, work outside the home and then come home to a second shift, often with inadequate support.

“We still see gender inequity,” she adds. “Women earn less, and if they’re employed part-time, they’re less likely to have health benefits and financial resources.”

A recent Prudential study on the “Financial Experience & Behaviors Among Women” shows, unfortunately, that women have not come a long way when it comes to money. Women feel no more prepared to make smarter financial decisions today than they did three years ago — or even a decade ago.

When asked about their confidence in themselves to achieve their financial goals, women had responses that startled me. This so-called “confidence gap” has not improved over the past 10 years, either. Really? No improvement?

“Women have been disenfranchised,” said Dr. Kate Levinson, psychotherapist and author of “Emotional Currency: A Woman’s Guide to Building a Healthy Relationship with Money.”

“Society doesn’t empower us,” Levinson said. “We’ve been acculturated to stay dumb about money — legally, and culturally, for generations.”

After reading these studies, I was quite shocked.

The studies did get me thinking, and they helped me understand why women have what I call the “ostrich effect” when it comes to money. Women, overall, refuse to accept reality, preferring to ignore the truth that we need to know about money. Instead, we bury our head in the sand.

We don’t get in the money game, because we do not want to get messy, and money can be a little intimidating. You could make a mistake or two, and you probably will. Heck, I would say that I have made at least that many mistakes. This is coming from a woman who thinks, breathes and lives her life learning as much as she can about money.

And while I will admit that I have made many mistakes along the way, I have made many more fantastic money decisions. The goal is to take action and take control of your financial life.

I would like to share three simple steps you can take now to become smarter about your finances.

  1. Get educated: Learning about money is important, and the more of a role you take, the more enjoyable it becomes. I started off taking a few classes at New York University and loved it so much that I have devoted my entire life to educating others about finances.

This might be a little extreme (I admit that I am a total nerd), but I can guarantee that you will be better off if you start to get a handle on your finances. There are hundreds of books, podcast, blogs and videos that can help you gain a better understanding of your personal finances. Dr. Levinson insists that we can’t “stay dumb” about money. “It limits our options in the world, not to mention feelings of self-worth and competency.”

  1. Track and budget: In order to make smart decisions about your money, you have to understand where your money is going. Start by tracking your expenses for one to two months. Once you see where your money is going, you can start to weed out the unnecessary expenses. Use this information to create a budget that reflects your needs instead of your wants.

To help make tracking and budgeting easier, you can download smartphone or tablet apps such as Mint, GoodBudget and Expensify. Creating and keeping your budget is one of the simplest ways to not only learn about your finances and spending habits but to be more informed and involved so that you can make smart decisions about money.

  1. Start saving now: Retirement might seem like an eternity away — especially for women in their 20s, 30s and even 40s — but saving for it is incredibly important for financial security. The earlier you start saving for retirement, the better your financial picture will look in the future.

If your company offers a 401(k) plan or 403(b), make sure you contribute as much as you can. This is especially important if they offer to match your contribution. Remember, this is essentially free money going into your retirement account. If your company doesn’t offer a 401(k) or 403(b), consider opening a traditional or Roth IRA. The sooner you start saving, the longer you are allowing your money to grow.

Women can be very smart with money. All we need to do is start getting in the game and stop believing that financial issues are too complicated for us to understand.

(This article was originally published on CNBC.com and has been reprinted by permission of its author, Stacy Francis.)

Early in her life, Stacy Francis witnessed how devastating life could be for women who were not empowered through financial education. Her grandmother stayed in an abusive marriage because she did not have the skills to effectively deal with money. That experience changed Stacy’s life and drove her into the finance field.

Stacy is president and CEO of Francis Financial, a fee-only boutique wealth management, financial planning, and divorce financial planning firm, and the founder of Savvy Ladies, a non-profit that has helped over 12,000 women across the spectrum of ages, life experience, and income levels identify their goals, make proactive choices about their finances, and lead richer, more rewarding lives.

 

 

Although SAS for Women® periodically features links to and writing by other professionals on the SAS website, SAS for Women® is not responsible for the accuracy or content of that information. As for what is best for you and your future, SAS always recommends you speak to a professional to discuss the particulars of your situation.

Yellow house with picket fence, cat and roses on vines

Should You Keep the House During Divorce?

Should you keep the house during divorce? Well, it’s not just about the house, is it? There is no way you’re letting go of the car, the jewelry, the investments, your pension, your hard-earned income, or the Baccarat crystal goblets either. And you’re pretty adamant your divorce attorney will agree.

Unfortunately, the law and recent statistics are not in synch with you. According to financial studies, divorcing individuals need a more than 30 percent increase in income just to maintain the standard of living they had before the divorce. Divorce is like that. It’s really about loss and opportunity. But the fact is the loss is harder on women.  One in five women fall to poverty as a result of divorce, while men experience a loss of between 10% and 40% to their standard of living. As devastating as those statistics may sound, divorce is not just about the economic leveling. Sometimes your life and the quality of your inner peace is more important than the house with the gourmet kitchen. Divorce could also be an ideal opportunity for you as a couple, and then as an independent woman, to face reality and get out of debt, or to finally sit down and work out a long-term financial plan for your children’s education.

What follows is a practical conversation about whether or not you should keep certain assets in the divorce. How you are going to come to terms emotionally with this division of assets, or how you are going to take steps to protect yourself and rebuild your life is better discussed in a series of coaching sessions or by reading this article about divorce recovery.

Divorce & the Family Home – Pros and Cons of Keeping It

There are a few questions you need to ask yourself where the property is concerned. The first is whether you would be able to keep up with the payments and maintenance of the property on your own and whether you would have enough cash to buy your partner out or qualify for a loan to do that. If this is going to place you under pressure, you may want to consider downscaling a bit in order to still live a comfortable life.

The advantages of keeping the home in divorce include:

  • Continued stability for the children
  • Maintaining an asset that will form part of the estate
  • The frustration of moving is not added to the stress that a divorce brings

The disadvantages of keeping the home in divorce include:

  • Mounting financial pressure due to loans or reduced saving
  • The full cost of the maintenance of the property rests on a single pair of shoulders
  • The possibility that there is no access to funds to buy the other spouse out, which could cause ongoing financial pressure

Until You Decide What to Do

Whether the proceedings are quick and amicable or long and drawn-out, it’s important for both parties to take responsibility for the property and their other financial obligations. Falling behind on mortgage payments following a divorce, could cause serious financial implications. Both parties risk losing their creditworthiness, which means they may not qualify for a mortgage, whether it is for the family home or not.

It is also crucial to maintain other payments, such as credit cards, tuition fees, levies, car payments, and insurances. Failure to maintain payments on these items could have a far-reaching effect on future applications.  At this point, couples may also want to look into making use of a Certified Divorce Financial Analyst (CDFA). A CDFA will assess the financial situation to ensure that both parties remain on an equal footing for a long period. This is especially handy where one party earns a lot more than the other, or one of the spouses is unable to enter the job market as they need to raise the children. During the calculation, the analyst will determine whether one spouse’s assets will grow and the other’s will deplete, and adjust their recommended asset split accordingly.

If Neither of You Wants It or Can Afford It

When you’ve made your calculations and neither of you qualifies for finance, or neither of you wishes to remain in the family home, the obvious choice would be to sell it. But what happens when the value of the property is far less than the actual bond with the financial institution? This is what a short sale is, but it really shouldn’t be the first option as it will have a negative rating on the credit scores of the spouses. When their FICO scores are affected, they may have to wait a few years to enter the property market again.

Other Debts and What to Do

Joint accounts and divorces go together like a tracksuit and heels. They don’t. The moment there is a whisper of divorce, it’s important to let the banks and financial institutions know. This is to prevent the spouse from running up the debt and getting out of town. Although a loan may be in both names, both parties are responsible for the repayments in full. If you’re left with the repayments and you’re struggling to keep it under control, you will need to contact the bank to make a payment arrangement.

Sit down with the finances and prioritize payments. List the expenses in order of most important, which would include mortgage or rental payments first, then food and utilities,and finally tuition and insurances. The rest will follow. Try to pay debt off as the items clear instead of running up a bill again, but don’t necessarily close the accounts in case the alimony and child support payments come in late. Only use debt for emergency purposes.

And for those issues that fall off the balance sheet … your emotional needs, concerns, your sense of injustice, not to mention how you will begin to rebuild your life and help your kids get through this, contact SAS. We will help you put a system in place to come to terms with what you’ve lost, but also what you will discover. Take advantage of our free consultation so you begin your healing now.

Jess Walter is a freelance writer and mother. She loves the freedom that comes with freelance life and the additional time it means she gets to spend with her family and pets.

2 calculators on a desk

Getting a Divorce? Choose the Right Accountant

Whether you’ve chosen the path, or been blindsided by the decision, no one needs to tell you that getting a divorce can consume you – both emotionally and financially, and that because divorce is so complicated, you must often rely on experts.  But it is also possible that you may be finding that the experts you work with, or are considering to hire, are all too often focused on what they do (and bill you for) and not what your needs are. If you are feeling a disconnect, take heart! It’s normal. Divorce is a particular life event that is uniquely personal. There is no magic formula or infallible model (despite what some experts might say, or what your friends might advise you) that will transform you to a place of financial independence, balance, and full healing.  It’s a process specific to you. And for women, it often involves an education in learning how to take control of your life.

Understanding and taking control of one’s finances is just one aspect to the process, but it is a very important one.  After all, it’s the money and the kids (–if you are a mother) that probably have you the most uncertain and wondering what your next best steps are. Finding a good accountant (and not relying on the one you may have used with your mate) is a very good idea.  But how do you proceed to choose an accountant so you set yourself up for your next best chapter?

If you are getting a divorce, or in the divorce recovery phase, here are five things your accountant should do for you as you begin to rebuild your life:

1. Listen

One of the most critical skills your accountant (–and any expert you hire) must have is the ability to really listen to you and your story. Without truly listening to you, any advice given won’t be tied to your individual needs. There is no one size fits all. You must be able to sit down and feel that you connection and be able to communicate with your accountant on many levels. Think about this as you are interviewing or considering an accountant, would you feel comfortable calling this person out of the blue with a random question?

2. Understand your needs (financial, emotional and social)

Tax, accounting, and financial advice must be seen through the prism of your life. Your financial needs and requirements may not only include the fundamentals like caring for the children and maintaining a home but may also include continuing assistance for … your going back to school, or caring for your aging parents, or organizations or charities and other philanthropic organizations you are involved with. Your emotional, career, and social needs must be supported by the financial advice you are given. The three are tied together like a bow. Without understanding your emotional and social needs the financial advice you are given can do more harm than good.

3. Help you plan the process

After listening to and understanding your individual needs, your accountant should now be able to provide you with several scenarios to consider as you plan out the divorce process or begin the restructuring post-divorce. There are many year-end tax planning checklists as well as guides on how to hire the right lawyer, forensic expert, etc., online. You could literally spend hours and hours searching for that information. That is not your job. Your job is to ask questions of your accountant or financial advisor, and then make the decisions that are right for you. Your accountant’s job is to take complex issues and problems and help you find the solutions that fit your needs. S/he must also be capable of explaining your choices in layman’s terms. If you don’t understand what your accountant is saying then the fault is on them, not you. Your accountant works for you and not the other way around.

4. Be your trusted (and tough) advisor

Your accountant must also play the role of “Tough Advisor”. You will have your own ideas about the divorce process, or what to do now that you are single, and your ideas matter greatly and should influence your accountant’s advice. But there does come times when your accountant should be confident enough to disagree with your decisions and be able to provide a rational argument to you. While ultimately the decision on your plan and finances will always be yours, your accountant should take the time to advise you on any concerns s/he has.

5. Be your “Financial General Contractor” for those providing other services to you

Once you and your accountant have established a relationship based on the previous four requirements then your accountant can play one of the most critical roles in your divorce process or divorce recovery: what I like to call the “Financial General Contractor”. Depending on your situation you may have many people assisting you with and impacting your divorce and future plans. Lawyers, coaches, forensic accountants, real estate agents, the IRS, etc., all may play a role.  But just like building a house, or hiring a divorce coach who can help you understand, oversee, and guide the moving parts, you need a Financial General Contractor to turn to who can help coordinate the money in play and help control everyone’s fees.  Your accountant may the best suited to assist you with this financial control. Besides your divorce coach (if you have one), your trusted accountant may have the broadest view of all your needs. Your accountant can also play the “bad girl/guy” role if need be with the rest of your divorce team if the results and fees are not in your best interests.

As an accountant with over 20 years of experience I have been on the other side of the desk (–though I prefer the kitchen table), listening to my clients as they have gone through the difficult process of getting a divorce. What I discovered was that the single most important thing for my clients was the ability to feel connected to the people who are helping though this hard time. My goal in writing this article was not to give you specific advice on what to do with your divorce, or which model to adopt in getting a divorce, or even to tell you what to do with your money. It was simply to provide guidance on how to select an accountant who can best help you begin or continue on your divorce journey.  As the ladies at SAS say, there’s a great big bright future for you just around the bend. You may not see it yet, but it’s there and it’s waiting for you.

Vincent Pungello, CPA, CISA, CFSA is a Certified Public Accountant and the Managing Member of Pungello CPA, LLC. Vincent has extensive experience in matters of personal and business taxation, forensic accounting as well as domestic and international accounting and auditing. If you would like to talk to Vincent to share what is happening in your journey and to hear possible next steps, he provides all SAS readers with a free consultation by phone. Contact him at (732) 814 7480 or email him at [email protected] and mention SAS to begin your conversation about your needs and where YOU want to go.