Author: Lee Borden

QDROs Can Cost More Now

In the past, divorcing spouses who wanted to transfer retirement plan money using a Qualified Domestic Relations Order (QDRO) faced the prospect of a significant attorney’s fee (typically $500-$1,000 for the QDRO for a defined contribution plan like a 401k plan and $1,000-$2,000 for a defined benefit plan like a pension). Now the Bush Administration (the Department of Labor and Internal Revenue Service) has added another cost. As a result of changes in interpretation of federal regulations, employers can now charge participants an allocated cost for processing a QDRO.

I’ve not heard anyone estimate what this fee would likely be. As soon as I have a general idea, I’ll post it here on the blog.

When Will Men Learn?

Here’s yet another case of a father who says he shouldn’t have to pay child support because he didn’t intend to father a child. The U.S. Court of Appeals has ruled (NE. v. Hedges, Case No. 04a)437p.06, U.S. Ct. Appeals December 20, 2004) that a father must pay child support despite his claim that the mother “fraudulently induced” sexual intercourse. She told him, according to the father, that her birth control pills would work and that there was no way she could get pregnant. Oh come on.

This case is noteworthy not because it breaks new ground but because it doesn’t. This point is well-settled. As the court put it,

. . . there are no judicial decisions recognizing a constitutional right of a man to terminate his duties of support under state law for a child that he has fathered, no matter how removed he may be emotionally from the child. Child support has long been a tax fathers have had to pay in Western civilization.

It’s also noteworthy because, I’m told, the father was a lawyer. Oh well.

Burden is on child support recipient

The Alabama Court of Civil Appeals says the burden of proving that a child support arrearage exists is on the recipient. In the case of C.M. v. B.S.L., Case No. 2030938 (Ala. Civ. App. January 14, 2005), the court acknowledged that the burden of proving that a credit AGAINST child support is on the payor.

It’s important to note that in this case there was not a court-ordered child support award. Instead, the court was interpreting the effect of a handwritten agreement signed by the parties on the inside cover of a receipt book.

The appeals court affirmed the lower court’s imposing a two-year statute of limitations on the arrearage pursuant to Ala. Code $ 26-17-8. This drastically limited the recipient’s recovery.

The lesson is clear for child support recipients. Do not rely on extra-judicial agreements about child support. Enforcing them is materially more difficult. Instead insist on a court order for child support. Once there is a court order in effect, each monthly payment is a judgment, and the statute of limitations for each monthly payment becomes 20 years from its due date.

Can You Really Be Friends After Divorce

Take a look at this topic entitled Can You Really Be Friends After Divorce? and witness the struggle divorced persons feel when they don’t feel the levels of anger against their spouse they read about and hear about in the news.

The (happy) fact is that most people who get divorced don’t spend thousands of dollars on legal fees. They just quietly end their marriage, get through the divorce, and move on with their lives. The culture doesn’t understand this, of course. Adversarial divorce is what the lawyers see. It’s what the judges see. It’s what the reporters see. It’s what the police see. All too often, it’s what the therapists see. So the culture thinks most people who get divorced have a big fight about it.

The culture’s wrong. Most of the divorcing couples I see aren’t busom buddies, and they’re relatively unlikely to be “best friends.” However, by and large, they are able to talk with each other, listen to each other, negotiate with each other, and when it’s needed, help each other.

Living in Man’s House Doesn’t End Alimony

The Alabama Court of Civil Appeals says ending alimony after divorce takes more than showing that the wife/recipient lives in a house owned by a member of the opposite sex. In McNatt v. McNatt, No. 2030638 (Ala. Civ. App. January 14, 2005), the court reversed the finding of a trial court that the wife had been cohabitating with a member of the opposite sex.

The appeals court said, “To evaluate the permanency of a relationship to determine whether a former spouse is cohabiting with a member of the opposite sex, this court has considered whether the former spouse is sharing a dwelling with a member of the opposite sex; whether the former spouse has ceased to date other members of the opposite sex; payment of the former spouse’s creditors by a member of the opposite sex; and the purchase of clothes for the former spouse by a member of the opposite sex.”

In the McNatt case, the appeals court noted that the evidence showed only that the wife/recipient lived in an apartment owned by her employer and that there was no evidence of any sexual relationship between her and the employer. The wife/recipient testified that she paid rent on the apartment and denied any romantic or sexual relationship.

England Strengthening Child Access Laws

Parents in England who refuse to let the other parent see their children could face curfews and compulsory community service under proposals the consitutional affairs secretary has proposed. The suggestions come after blistering criticism of the existing family court system and a growing momentum for change fostered by fathers’ rights groups. Here’s a description of the suggested changes and the political turmoil around them from the BBC.

Included in the new plans is an increased emphasis on making voluntary mediation available and making it easier for parents to get access to legal, emotional, and practical advice by telephone and over the Internet. The conservative shadow secretary for the family has already rejected the proposals as “inadequate.”

Equal Time Parenting in Alabama

One of our readers on Alabama Divorce Questions asked about equal time parenting. Alabama is unlike many other states in that there is an informal presumption AGAINST equal time parenting, not in favor of it.

You can read her questions and my answers if you want to.

Child Support – interest is taxable

One of our readers on Alabama Divorce Questions expressed her frustration that the interest she is receiving from the other parent on delilnquent child support is taxable. “Could this be true?” she asks. Absolutely. As I told her in my post, however, that’s no reason not to go ahead and accept the interest. I’ll take taxable income any day, and so should you.

Only one health insurance counts

It’s an abuse of discretion for the court to count the cost of health insurance for both parents when it calculates child support using the Alabama child support guidelines. This from the Alabama Court of Civil Appeals in Volovecky v. Hoffman, No. 2030291 (Ala.Civ.App. 12/30/2004). The divorce decree had required the father to provide health insurance, and he had complied. In a modification case, however, the court included the cost of health insurance for both the father and the mother. The appeals court reversed, instructing the trial court to recompute child support based on the cost of health insurance provided by the father.

Is divorce too easy?

Is divorce getting easier? This article from AP seems to be saying so in describing the proliferation of sites offering online divorce document preparation. What’s fascinating to me as a divorce lawyer is that my charge for a lawyer-assisted uncontested divorce (complete with personal legal advice and the handling of all filing from complaint to finished Final Judgment of Divorce) is less than most of these web sites are charging. What gives? I’m obviously doing a lousy job of marketing.

Is it getting too easy to get a divorce? People often ask me that. My usual response is to ask them whether they’ve been through a divorce themselves. Most who have can answer this question easily: absolutely not.

By the time people actually make it to my office to file for divorce, they’ve been through unimaginable misery. I don’t know many at all who would say the process is too easy.

Child support – no offset for alimony

The Alabama Court of Civil Appeals ruled in December that it’s not appropriate to reduce income by alimony when figuring child support. The father had argued in the case of Spears v. Spears (Ala. Civ. App. 2004) that his income for child support purposes should be reduced by the alimony he was required to pay to his ex-wife. The court said that Rule 32 is clear: it’s “pre-existing” alimony, not alimony from this case.