My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.
Thursday, January 24, 2019
Tuesday, December 18, 2018
Tuesday, September 25, 2018
While parents may have overlooked key differences in parenting styles while there was still some love and affection, the attention focuses on these differences in an unwelcome way when the trust in a relationship has broken down. Parents have to learn to trust again and that different parenting styles do not make one right and one wrong. They must also recognize that children will sense their nervousness around the other parent or will have heard negative things about the other parent in the course of the two phases to date, and will often determine that they do not wish to go on access. It is important for children’s health and well being that they continue a relationship with the absent parent. Learning to live with and cope with all the competing feelings and interests and have clear boundaries is a serious learning curve for both parents.
I would always recommend parents to try and agree on things like custody and access to their children. Even the terminology here is archaic and even has criminal overtones which are out of place in family situations. If those matters are imposed from the top (Judge) down they can cause considerable hassle in their implementation. Far better to agree.
Aside from the considerable difficulties involved in recommunicating in a sufficiently calm and efficient way to ensure property and smooth transfer from one parent to the other, there are the considerable difficulties involved in different styles as mentioned above in a climate of strained trust at best. For example, if Mum feels that Dad is just looking for access to get at her and that really the children are just being parked in front of a telly or allowed to play games, she may have difficulty allowing access. For both parents the restraint needed not to prod children for information may be too much. There is also the fact that children may be upset when leaving one or other parent as would be normal but the parents can read too much into it to suit themselves without even realising they are doing this. These are only a few examples of the sorts of issues that arise very frequently post-hearing which can often become even further complicated by the arrival of a 3rd party into one or other of the parent’s lives. At this particular juncture, this can have a very destabilising effect and even more so if no provisions have been made for this likely event.
Of course, money can also be a major issue in the ongoing successful post-separation parenting of children. Very often Mum will perceive Dad as being able to spend more money on the children than she can afford. She will say he is buying their affections. Such a scenario can get played out over Christmas with gusto. Both parents decided to have Santa so two sets of presents. No parental co-operation around the Mum and Dad presents and so both spend more than they have so as not to be seen as having skimped. In addition, there is the skirmishing around who has the children on Christmas Day and for how long etc. All of this can be avoided with proper planning and looking at it from the children’s perspective rather than each parent focusing only on what they will have. Disagreements can arise over what clothes the children bring back and forth from one home to the other. One party will accuse the other of not laundering the clothes prior to return, not doing homework with them should that need to be done, not feeding them so they go to bed later than normal, not feeding them properly, not sending them over to the other house with enough clothes so clothes have to buy etc etc. Is it any wonder kids would find it difficult to move back and for them with all these tensions spilling over?
If you go to court, the court will not look at any of the above i.e., they will not anticipate the difficulties that may arise, they will simply order access as they feel appropriate based on the individual Judge’s habits in this area and the evidence presented. However, in ADR, particularly collaboration, we look carefully at the issues that might arise such as a 3rd or 4th adult coming into the picture, Christmas presents, grandparents and extended family contact. We try and ensure that both parents anticipate issues before they arise and have a plan in mind for dealing with this and furthermore, that we have very clear rules set down as to how to deal with something which arises that was not discussed. We look at money for children very carefully and try and ensure that each parent can and will contact the other to discuss any envisaged expenditure for the child/children of a large nature. This minimises problems over Christmas and birthdays. We future plan educational expenditures so that by the time the parties get to an agreement they have envisaged most of the issues likely to arise going forward with their individual homes and their children. Quite often, however, the parties will remain living in one house awaiting a sale, agreement or court order before driving on so the actual experience of co-parenting post-separation in a physical way will not arise until after the case has concluded or is near the end. Of all the issues that can arise post separation settlement or orders, access issues can be the most difficult to sort, causing further heartache not to mention expense to both parents and children.
The experience of co-parenting is a steep learning curve for both parents. Mum has quite often been the hands-on parent and Dad the one coming and going. Dad may have to learn how to manage the children without the assistance of Mum and in an everyday way as opposed to outings. Mum, on the other hand, may have to share in a way she did not in the course of the marriage at a time when her ability to trust is often at an all-time low. She may also be resentful that Dad is suddenly asserting himself as Dad when in the course of the marriage he was off most of the time. Both parents have to share their concerns in a managed safe way, both need to acknowledge the valued role that each of them plays in the children’s lives and both need to seek help from counselors and parenting groups if needs be. The beauty of ADR is that it can assist with all of this while the legal process is ongoing because, of course, some ADR methods are legal processes also.
Bearing the above in mind, it is, therefore, often the case that clients are best off to wait as long as possible before embarking on the legal aspect of their divorce. There are circumstances, however, when speed is of the essence, for example, where one spouse is being harmed, or where children are suffering for whatever reason or where assets or money are in danger of being dissipated if time runs on. This is not meant to be an exhaustive list so it may be as well to check with a family law solicitor if you are unsure, however, when a lawyer tells you to take your time, you really should listen.
When you do decide to take time to allow things to settle a bit, attending counseling as part of that process is a very useful and good thing to do. Counseling can help you to keep focus and can also assist you to see your own part in the breakdown of the marriage whether you are the Walk Away or the Leave Behind. In the throes of anger and denial, it is very hard to contemplate this but it can often play a crucial part in recovery. Counselors are trained in managing emotion and so can assist you to see things more clearly and teach you techniques to help you manage your emotions.
It is important to know before you embark on anyone legal process, that there are several ways of going about your separation/divorce. I spoke about these briefly in the previous article on Phase 1 of the divorce process and mentioned them by name. The most important thing to be aware of is that there is that you can divorce/separate in many different ways and a good understanding of all of them will help you to make an informed decision about how best to proceed. The different ways that you can divorce, divide into those methods that come under Alternative Dispute Resolution (ADR) and those that are adversarial i.e., in the Court side of things. All of these processes, however, have a legal component so they come under the second phase.
Alternative Dispute Resolution embraces mediation in all its forms, managed negotiation and collaboration. Adversarial on the other hand takes in traditional negotiation between solicitors or between barristers and the actual hearing before a Judge and all that is involved in getting to that hearing date. The dynamic of a couple separating, the background to their marriage and family of origin history, child issues, financial issues, company or property issues can often determine as well as their personalities what type of alternative dispute resolution process might best suit them. Determining this requires a whole separate skill set all of its own and it also requires a couple who have processed through most of the emotional phase, though they do not have to be completely out of it even if that is actually possible, the more they have processed the better they will be able to work within the ADR spectrum.
In Ireland, all family law (adversarial) is conducted “in camera” which is a Latin term for privately. This means that most people have no idea of how hard it might be to proceed through the court system. When you combine this with the emotional phase, the experience can be really awful for many people. As a solicitor, I tell clients exactly what to expect i.e., how long the process can take with or without delays, the costs involved whether it is settled and at what point of the process and what costs are involved in going to a full hearing, what to expect from the system on the day of hearing etc., but I think most people cannot take this in as there is nothing in their experience to match. Sometimes going to court is the best option for a client but I would urge everyone to explore their options before proceeding in one direction. The problem is when you are angry or full of hate, the only option that might seem attractive is a court process because we are all full of television portrayals of courtrooms where mean and criminal types nearly always get their ‘come uppance’ and lawyers make inspiring speeches. The reality is far removed from this. Judges frequently have far too much on their court list on any one day to give individual cases the time they might like. Judges are never interested in inspiring speeches, they have to be saved for the jury and no jury will be involved in family court. Barristers are often juggling several cases on the one day and will be moving between one frightened couple and another trying if at all possible to settle their cases. Clients rarely feel they are getting the love and attention they want. Quite often there is nowhere to sit and no privacy and people are left standing around in small groups trying to negotiate for most of a day. This is exhausting for everyone and not conducive to good settlements. When your solicitor tells you all this and more at the beginning of your case, you are probably not able to listen and even if you do hear it probably don’t fully believe it and think he or she is likely to be exaggerating to dampen your expectations or to justify their big fee or whatever. The vast majority of experienced family law solicitors will do everything they can to try and settle their cases in advance of any court date.
The legal phase can take 12 to 18 months if the matter if fully contested and that is without undue delays. Delays arise when people don’t file their paperwork at the proper time and one or other has to keep going into court to seek sanctions to force the other side to comply. Financial disclosure is one of the biggest delays in the family law system. This involves each party to the proceedings making a full and frank disclosure of their financial situation to the other on sworn affidavit. With rare exceptions, few people are happy with the disclosure made and it can become a war of attrition serving mainly to prolong the agony.
ADR with dedicated clients and good management is much faster than going to court and less costly. You do not compete for attention when it is your time. The process can go as fast or as slowly as is needed and often the process itself can assist with the emotions and with the co-parenting issues which can move clients forward through the six stages quicker than otherwise. ADR itself helps parties to detoxify making some of their other adjustments more bearable.
Family law clients often articulate a need to have the legal part over before they feel they can get on with their lives. When the legal part drags on they get frustrated. They feel that they are stuck. This is often because they think that when the legal part is sorted everything will be over and the torture will end. Often, however, when the legal part is coming to a close, the other stages are only just beginning. Up to the time of divorce, there may be no experience of co-parenting as the parties are still in one house. Therefore, the making of a court order in relation to how the children are to be parented going forward may bring on the Co-Parenting Phase of Divorce. In addition, the granting of orders pertaining to property and finance may give rise to the first real experience for either party of the reduction in living standards which occurs when combined property and income is split bringing on the Financial Phase of the divorce. Often when property is sold or one party moves away this can lead to the Community Phase of Divorce and then we get to the final part which almost certainly comes after all the other parts are fully processed and that is the Psychic Divorce where the parties finally come to terms and accept that they once again autonomous beings.
People are not one dimensional. As well as their legal needs, they have emotional needs, financial needs, family and parenting needs, and psychic/spiritual needs. The Court can either, after a full hearing or when parties have entered into a settlement, make a full order covering the granting of the divorce itself as well as making provisions i.e., orders in relation to children, finances and property, however, the paper is one thing but the reality of implementing and living with those orders even when they are agreed, as opposed to imposed, is something else again. The practical realities and accepting them with all their limitations comprise stage three and four of the divorce i.e., the co-parenting and financial divorce. When a house is sold or changes hands from one spouse to the other, one or both parties can lose their community. This involves a divorce process all of its own and it is referred to as the Community Stage. Finally, there is the psychic which is usually the most profound change and that embraces moving from coupledom to autonomy. Another way of putting it would be accepting that you are single again. A lot of people, particularly those who go to court, can experience 4 of the six stages post the granting of the decree of divorce or separation order.
When a person comes to a solicitor for advice on divorce or separation, they are often in the first throes of emotional divorce but if you look at emotional divorce from a grief cycle perspective you can find yourself presented with a client at the beginning of the emotional stage. On one end there could be a fundamental denial that this is actually happening as well as anger with the other Spouse. For ease of reference, I call the spouse who has broken the news that the marriage is over the “Walk Away” Spouse and the one who is receiving this unfortunate news the “Left Behind” Spouse. Generally speaking, the “Left Behind” is in anger or denial and the “Walk Away” is on acceptance and let's get on with it. Who is who is a crucial piece of information for the solicitor. On the face of it the “Walk Away” spouse is often easier to handle being in a place mentally where decisions come more easily. However, the “Walk Away” can often have little understanding of where the other spouse is at and this can make the divorce more difficult than it needs to be. When this happens, as it does in most cases, it is important that everyone understands that the ability of the “Left Behind” spouse to deal with the rational and legal aspects of divorce or separation is severely compromised. Quite often hate and anger takes over from rationality and where once there was love and affection, there is now the exact opposite. Feelings of anger can sometimes be so intense that the “Left Behind” spouse is completely overcome engaging in irrational behavior like stalking, texting angry and abusive texts morning noon and night, anger outbursts frequently in front of family particularly children, uninvited appearances at the Walk Away’s home, calls to the Walk Away’s family of origin guaranteed to alienate them and so on. All of these behaviors may affect, and if repeated or particularly bad, completely sabotage their legal case. This happens because the Left Behind’s behavior shifts the focus from what needs to be sorted in a rational way, to their behavior. Because a Left Behind spouse is unlikely to be angry all the time, even while in the emotional phase, and because emotions can shift from anger to other emotions like hope or despair and the depth/intensity of the emotions can vary, it can be very important to have an understanding of this phase even if you are smack bang in the middle of it. A Walk Away spouse can seem almost alien in their emotional detachment to a Left Behind. It is important to understand that is impression arises because the parties are communicating from very different emotional spaces. Left Behind parties will often say and mean at the time of uttering things like “He/she is no longer the person I married” or “He/she is almost unrecognizable to me” or “He/she is totally cold and indifferent” or versions of the above. This is normal at this stage and can give rise to a profound mistrust. It is important for the Left Behind party to understand that their spouse is not evil, probably not under the influence of a malevolent being, and is unlikely to be someone who hid his/her true nature throughout the actual marriage. He or she has not become evil. It is important for the professionals not to buy into the anger or hate of one party as being a factual description of the other party. A failure to recognize this phase of divorce/separation for what it is can make any form of communication going forward between the spouses less or more likely depending and can render future co-operative co-parenting well nigh impossible.
During the emotional phase, personal counseling will be of real benefit to the parties particularly the Left Behind. People often shy away from the idea of counseling thinking they can muddle their own way along, however, a good counselor can help you through a difficult time with a lot less scarring than otherwise. Solicitors don’t tend to speak emotion and their professional language can be dry and often incomprehensible whereas counselors speak and understand emotion very well and can communicate effectively with clients in this phase.
As solicitors who deal with family law, we recognize that a client’s ability, i.e., a client who is a “Left Behind” to make rational and constructive choices and decisions whilst in the emotional phase is severely compromised. A flood of emotions will quite literally cause the brain to be flooded making it possible to make one of two choices, fight or fly (I have explored this in a previous article ) A Solicitor is called upon to be professional requiring them to give objective rational advice to their clients. In a family matter, this professional requirement of the solicitor can give rise to a perception in the client’s mind that the solicitor is not on “their wavelength”. When the Walk Away client comes into the solicitor’s office he/she can often communicate as if they have it all figured out and have processed all the emotion. They often say things like “How quickly can this be done”. Those of us who are familiar with the grief cycles know that they are not in a linear progression and people can be ambushed with any or all of the emotions in one day but less so as time goes on. Recognizing this can assist to understand why on one particular day a perfectly rational client may be in a complete state on the telephone whereas totally calm the day previous. It can also help the parties themselves to see what is happening and recognize it for what it is.
As an experienced practitioner of family law, I find that people who are at the same stage of processing will do better in resolving the difficulties of the divorce process but since most clients are not on the same sheet, it is a good idea for the Walk Away to bide his/her time until the Left Behind has reached a stage of acceptance at least some of the time. The divorces/separations which are the least painful and the least, I believe, damaging to their children, are those where both parties acknowledge that the divorce was inevitable and they both have now reached the same degree of emotional detachment. This involves the Walk Away party being patient, but I believe profoundly that this is in the Walk Away party’s best interests ultimately and that patients will be well rewarded. The Left Behind party needs time to work through the emotional maelstrom and if not given that time, emotions will sabotage any attempt to resolve issues arising out of the ending of the marriage again and again. When both parties are ready, they can then make an informed choice of the manner in which they will conduct their separation/divorce. This involves making choices between various forms of Alternative Dispute Resolution methods or going the more traditional route of court. There are times when the court is the best option and times when the alternatives should be fully explored. Even, however, should you wind up in the court system, it is important to note that most case settle and a very small proportion wind up before a Judge.
It would take too long for me in this piece to elaborate on all of the Alternative Dispute Resolution methods or to talk about the court system and what is involved. A lot of this information is scattered throughout my articles already, however, on the suggestion of a client, I intend to do a combination piece outlining each process in the near future in one article. For now, I will just say that each process whether it is in the Alternative Dispute Resolution family or the Adversarial Dispute Resolution family is very distinct, while grounded on some shared core principles. It is very worthwhile to explore all of these in depth to figure out what suits you best.
Making the right process choice requires a clear head and good reliable information and is not something that you should undertake when you are in the emotional phase or you and your ex-are at opposite ends of that emotional spectrum. I will explore the five other stages/phases of divorce in succeeding articles.
Monday, June 25, 2018
Hogan Injury is a very large Californian law firm with various offices around California.
It struck me reading this that I should perhaps do a post/article on the position in Ireland in relation to tax. Many people it would seem go through separation and divorce without considering the issue of tax to any great extent and that is unfortunate. It is an important consideration.
Sometimes couples separate without any formal arrangements. If you do this, then it is very important that you take tax advice on both of your tax positions based on whether or not you formalize your situation. We all know that running two households can stretch a budget over its natural limit and put people into debt very quickly. Should one party contact the Revenue and change the delicate balance, it can have implications for parties that were not intended when one of them agreed to move out. It is generally advised on the internet that you should inform the Revenue about your physical separation however, this is often not carefully considered by the couple or either of them before they do so. The couple or either of them has generally not sought advice before advising the Revenue of their situation. I would say do not advise the Revenue until you have taken proper advice from an accountant or solicitor with expertise in family matters and I would particularly stress that if you are not sure your separation is final then do not contact the Revenue until you are sure and until you have taken advise.
As part of the formalization of a separation or divorce, a couple should contact the Revenue Commissioners so that tax adjustments can be made for the year in which the couple separate. The couple must confirm in writing before the end of the tax year which tax option they are choosing. Gay couples may now marry as the world knows however, people may not know that as and from the 16th November 2015 Ireland no longer has the legal status of Civil Partnership available. However, couples who became civil partners before that date, are able to avail of the tax provisions applicable to married couples. There are three tax options available to married couples and they are:
Single: i.e., taxed as two single people and that option is available to a couple post separation or divorce. Please note that choosing to be taxed as a single person when you are married is not favorable in many circumstances and advise should definitely be taken on this.
Separate Assessment: The tax affairs of the spouses are independent except that some tax credits can be divided equally, for example, the married tax credit, age tax credit, blind person tax credit, and incapacitated child tax credit. People who are separately assessed will on separation/divorce be assessed up to the date of separation in the normal way and can transfer any unused tax credits and rate bands to each other.
Joint Assessment: Under this one spouse is accountable for tax purposes and he/she is called the Accessible Spouse (AS). The AS is entitled to married person tax credit and double bands for the full year in which the parties separate. This can be a tremendous financial boost for a couple at a very difficult time. The year of separation throws up a unique anomaly i.e., the credits and bands available to a separating couple can actually work out higher than would otherwise apply to a married couple. The accessible spouse receives the married tax bands and the tax credits for the entire year with the alternate spouse benefiting from their own single person’s bands and credits. The couple must advise the Revenue in writing of their separation before the end of the tax year if they are opting for joint assessment and they must be resident in the jurisdiction, there must be a legally enforceable agreement in place. In addition, they must not have remarried. Advise on timing may be very important quite apart from tax advise per se.
Separated or Divorced spouses may choose to be taxed either as a married couple or single persons after the year in which they separate i.e. Single or Joint Assessment. The payment of maintenance and the type of maintenance will have a large bearing on which should apply and again advise is crucial.
Quite often people are caught out by voluntary maintenance and when they find out that they could have claimed tax relief think that they might be eligible for a refund. Note that voluntary maintenance is ignored for Income Tax purposes. Spousal maintenance is taxable in the hands of the receiving spouse. It is paid out of the payers’ gross income and is accordingly, taxable in the hands of the receiving spouse.
Apart from Income Tax, there is no CGT (Capital Gains Tax) on disposals between spouses which are made on foot of a separation agreement court order or a divorce. Capital Gains tax arises on gifts or sales. It is worth noting however that the transfer of assets after the granting of a decree that is not ordered by the court are not exempt. Another tax applicable is CAT (Capital Acquisitions Tax) and this applies to gifts or inheritances. The value of the gift or inheritance is its open market value and between spouses or civil partners, there is an exemption. Capital Acquisition tax will not apply to a property transfer made by the court on foot of a separation or divorce.
In addition to the above transfers between spouses and transfers between spouses on foot of agreement for separation, an order of the court or divorce, are exempt from stamp duty. Finally, for the purposes of this article which is not meant to be exhaustive in any sense, parties who are separated or divorced post 15-6-2000 and who arising of said separation purchase another house and the other spouse remains in the family home may qualify for a first- time house buyers’ grant.
CGT provisions and CAT are similar in California cf article of Hogan Injury referenced above.
One other matter arises since it was also mentioned in the US article referenced above, and that is what is known here as SPCCC(Single Person Child Carer Credit) which is a tax credit in favor of a person caring for children on his/her own. From January 2014 this only applies to one spouse. Previously it had the potential of being claimed by both depending on the custody/child residency arrangements. This is an allowance if you have children residing with you and you are the primary custodian/parental residence. It can, however, be waived and given to the other spouse.
Foreign divorces are recognized in Ireland and therefore a foreign maintenance order can be recognized for tax purposes.
Dry stuff, but death and taxes- what can I say, hardly amusing subjects!