Posts Tagged ‘Family Law Mistake’

Q/AQ: What is the most common mistake that is made in family law cases? 

A: Parties become so emotionally involved that they fail to act calmly and rationally.  These cases, by their very nature, are stressful. If a party can’t handle that stress, they are at a disadvantage and  will frequently sabotage their own case!  In practice, there are many different ways that this will manifest itself.

Some of the the most common instances of this include:

1) An overwhelming need for a “quick” resolution – even if it doesn’t make sense for the party or the family;

2) An unwillingness to comply with orders of  the Court – which almost always creates greater difficulties for the party;

3) The hiring-firing of multiple lawyers and/or the unwillingness to really listen to and implement the advice of counsel;

4) Acting rashly and impulsively and taking major actions without consulting with counsel.

An experienced family law attorney will understand that these are stressful times for his/her client and will try to keep clients calm or recommend therapeutic help when appropriate. Parties who find themselves overwhelmed by the process may need to seek professional counseling.

There is an old saying in the family law profession: “In criminal cases you have bad people on their best behavior and in divorce cases you have good people on their worst behavior.” 

Parties need to understand that emotional behavior is not the  path to the successful resolution of a family law matter.

This past June, in a landmark decision, the US Supreme Court found the Defense of Marriage Act (DOMA) unconstitutional, declaring that that same-sex couples who are legally married in a state recognizing same sex marriage deserve equal rights to the benefits under federal law that go to all other married couples. This decision is widely seen as striking down DOMA in favor of marriage equality, but of course it’s more complex than that and the ramifications are now unfolding.

The latest major change as a result of the DOMA decision is that the IRS now will recognize same sex married partners as married regardless of the state in which they reside, thereby requiring that such couples file their federal income tax returns as either married filing jointly or married filing separately; they can no longer file separately as unmarried individuals (same as for heterosexual married couples). The IRS is also allowing such couples to file amended income tax returns for prior years in which they may have paid too much as a result of filing separately, but they do not have to file amended returns if doing so would result in higher taxes than they paid. This is indeed welcomed news for all such parties.

One wrinkle however is that such couples, if residing in a state which does not recognize same sex marriage after having been legally married in a state which does, may be required to file state income tax returns separately, a complication augmented by the fact that state income tax filing generally follows from federal. Still, overall this is a progressive move.

Another complication is that, while this key component of DOMA was overturned, another major component remains: Section 2 of DOMA declares that those states which do not recognized marriage equality (same sex marriage) do not have to recognize any same sex marriage from states which such marriage are legal. This not only informs the tax code as referenced above, but also can complicate divorce proceedings for same sex couple residing in a state which does not recognize same sex marriage. How so? If a couple is not recognized as legally married in a given state, then that state can deny that couple the right to divorce since, according to state law, they are not married to begin with. Furthermore, they cannot return to the state where they were married for the purpose of seeking a divorce since all states require residency for such proceedings. This would mean that such a couple would have to uproot themselves from their current state of residence and re-establish residency in the state in which they were married prior to seeking divorce.

Joe and Cindy have been married for 12 years. They have two kids, ages 6 and 10, and bought a 3-bedroom ranch in a western suburb of Boston seven years ago. They have since remodeled, adding a porch, a car port, and expanding and redesigning the kitchen. However, they started having marital problems two years ago, as Joe spent more and more time at work and Cindy began donating ever more time for various causes, until both began feeling abandoned by the other. So Joe moved out of the house 10 months ago, months before they decided to seek a divorce, and now he finds himself angry at having to support his new home as well as the home he left, and feeling cut off at the same time.

Often the first spouse – in this case, Joe – to move out of the marital home is at a disadvantage. The spouse that remains in the home – such as Cindy – may have leverage as to obtaining more support to pay for the mortgage and support. The situation may worsen for the spouse who moved out in a case where the spouse who remained in the home seeks to buyout the first spouse, as that party will often delay to gain more leverage in negotiating a better deal. Often the process will drag on and the spouse who has vacated will settle for less to be able to move from their “temporary situation.” Other times, a better deal can be negotiated with a spouse who is unhappy (dare I say miserable!) to be still residing with their soon-to-be ex. However, the potential for a restraining order can also be a danger for a spouse who chooses to remain in the marital home during the pendency of a divorce. Bottom line – don’t make hasty decisions; your best bet is to discuss your particular case with an experienced divorce attorney that can advise you of the pros and cons of vacating a marital home.

The information contained in this blog is for educational purposes only and is not legal advice. The use of this Blog does not create an attorney/client relationship between you and the Law Offices of Barry R. Lewis. If you are considering divorce or if you are involved in any legal matter, you should hire an attorney.

Massachusetts Divorce and Family Law
Attorney Barry R. Lewis — Divorce Law Specialist
Locations Throughout Eastern & Central Massachusetts :: 508-879-3262