Saturday, May 11, 2019
Monday, April 29, 2019
There is no greater waste of money in a divorce than fighting over divisionof small personal property owned by a couple. The attorney fees spent to argue over beds, sofas, kitchen table, tvs, and other household items usually exceed the value of the items. A dining room set purchased for $5,000.00 may be valued in a divorce at $300.00. As used furniture, the set may only be sold at a garage sale. Most household furniture is valued based upon what can be realized for the asset at a garage sale. It is simply cheaper to go out and buy an equivalent item than to pay attorneys to fight over it. Of course, higher value items such as house, retirement accounts, investment accounts, and collections are worth the cost of paying for appraisers and attorneys. I suggest that the parties approach division of household items with consideration of the following issues.
If there are children, the children should be given priority. The children's furniture should remain with the parent who has more parenting time than the other. The rest of the furniture in the house should also take into account the children. If there is only one tv it should remain in the house with the children. If there are two tvs then the parent with the children should get the better tv.
Most households currently have a car for each parent. Unless a car is a collector's item, each party needs a car to function in today's society. In almost all cases, judges award the cars to the party who primarily drove each car prior to separation. Cars are generally viewed as a necessary tool and not as an asset.
Both parents should try to be fair about division of household items. Any unfairness is usually met with a large increase in attorney fees. The problem is that the parent who doesn't get the household items needs to go out and purchase new items. The need to make such purchases as well as a rental security deposit and last month rent should be recognized and money should be set aside for these expenses. Treating each other fairly means that both parents end up with adequate furniture and living arrangements. This can be accomplished by possession of existing items or money to buy replacement items.
Parties need to identify items of sentimental value to the two parties and cooperate to allocate the sentimental items to the appropriate party. Family heirlooms should go to the party who broguht the item into the marriage. Again, the countervailing value is money set aside to purchase a replacement item.
Items that are only used by one party should be offered to that party. A riding lawn mower that had been used exclusively by the husband may never be used by the wife who intends to hire a service to mow the lawn. If the wife sells the mower without the husband's permission it will be a violation of the automatic restraining order and have the effect of a declaration of war that will cause the husband to fight over trivial matters. Giving the husband opportunity to take the mower or have both parties sell the mower and divide the proceeds will result in a better attitude from both parties.
Pictures and videos are frequently the subject of litigation. It will save money if the parties pay to have the pictures duplicated so that each party can have a set. Sometimes the parties will agree to purchase a scanner so that one party can copy all pictures and give the originals to the other.
Division of personal property can be a huge drain of financial resources if the parties choose to fight over the assets. This large expense is seldom worth the money required to have the judge resolve the division. An experienced divorce attorney should be consulted to learn how the law applies to your case and to look for an inexpensive logical solution to property division.
Sunday, February 24, 2019
A judicial decree of annulment is a declaration that a marriage never existed. There are a number of reasons why a judge may grant an annulment but this is disfavored by judges who prefer to grant parties a divorce.
A marriage requires two competent people to go through a wedding ceremony performed by a person who is vested with the power to marry people. The formalities of a wedding require the parties to create a contract between and to comply with all state requirements. An annulment can be granted if no valid contract was created at the time of the marriage ceremony or if there was a failure to meet certain state requirements. Not every failure to comply with state procedures will permit an annulment and, in some instances, the conduct of the parties over a period of time could result in ratification of the marriage thereby making the marriage valid. An annulment can be granted if there was a lack of consent to the marriage, or a legal impediment to the marriage.
A lack of consent can occur if there was fraud relating to the essence of the marriage, duress, or mental incapacity. Not every fraudulent statement goes to the “essence” of the marriage. Examples of fraud that arises to this level are: false statements about intent to cohabit or have sexual intercourse, false statements about pregnancy and paternity of the unborn child, false statements about religion, and false statements about intention to have children. Other false statements such as statements about finances may not be sufficient to go to the “essence of the marriage.” Fraud requires a fact to be misrepresented. However misrepresentation is not the same as concealment. Failure to discuss intent to have children is a concealment and not a fraudulent misrepresentation. To obtain an annullment there must have been an actual statement made on a topic that goes to the essence of the marriage.
The grounds of duress means that at the time of the wedding ceremony a party was under duress of a level that they were unable to exercise free will. An example of this is a shotgun wedding. The threat of bodily harm or death for failure to go through the ceremony is sufficient for an annulment.
Mental incapacity can occur when a party is under the age of consent or has a mental disease or defect that interfere's with their ability to form the intent to enter into a contract. However, if a party lacks mental capacity they may be able to get married if a parent or a guardian consents to the marriage. State law varies on the age of consent and procedures for obtaining permission for incompetents to marry. It may be necessary to obtain permission from a judge to make the marriage valid.
An annulment can be granted if there is an impediment to a marriage. This means that one party to the marriage is married to another person and the prior marriage had not terminated at the time of the new wedding ceremony.
Every State prohibits certain people from getting married. The list of people prohibited from getting married is based on close family relationships. Siblings can't get married and parents can't marry their own children. Most states prohibit marrying step-children or parents-in-law. The list varies from state to state.
Annulment is a complicated area of the law and is generally difficult to obtain. In comparison, divorce can be obtained based on no-fault grounds. This means that the parties could go through a protracted trial to determine if an annulment should be granted but at the end still be married. In a no-fault divorce, the parties never contest the issue of whether a divorce should be granted. A judge must grant a no-fault divorce but does not have to grant an annulment.
If you are considering an annulment you should consult a family law attorney who can discuss your options and advise you concerning both annulment and divorce.