THE WHOLE ENCHILADA, INCLUDING THE EX-WIFE

                On a recent Saturday night I decided to try a relatively new restaurant in the Broward Mall…oh, excuse me, that’s Westfield Broward (sorry, old habits die hard…it was only renamed about seven years ago).  The establishment is called The Whole Enchilada, a Mexican-style casual eatery with tacos, burritos, quesadillas and, you guessed it, enchiladas.

                So while my husband was up ordering our dinners (hey, it was the weekend…and I needed a break), I decided to read the rest of the menu.  Understand that I read anything and everything.  Yes, I was the kid who read the cereal boxes in my youth and, as I said earlier, old habits die hard.  Lo and behold, what did I find as a double star entrée on the back page? Glad you asked, because you were probably wondering at this point what The Whole Enchilada has to do with a family law blog.   Well, a featured menu item is none other than THE EX-WIFE.  The description, taken verbatim, is as follows:

                                “Because it seemed like a good idea at the time…”

Those willing to take on the ex-wife challenge will have 45 minutes during one sitting to complete the entire burrito and all of its accompaniments.  If successful-it’s free and you will receive a TWE shirt and a forever gift of remembrance at The Whole Enchilada Fresh Mexican Grill.

The $39.99 entrée is:

                A combined 6 pounds of Mexican Rice, black or pinto beans, jack and cheddar cheese, salsa,      guacamole, lettuce and sour cream with your choice of charbroiled chicken, ground beef, pork or     tofu along with a healthy side of chips.

                Steak, Shrimp or Mahi Mahi (and, as the immortal Dave Barry says…I am NOT making this up) add $8.00.                            

                Okay, besides the obvious “this is so gross just reading it makes me want to…..” one wonders (or at least I did), why this entrée is called THE EX-WIFE.  And whose “good idea at the time” was it? Was it the “good idea’ of the person who named it? Or are they referring to the thought process of the prospective patron who actually orders this massive remembrance of a prior wife and decides that, regardless of the free t-shirt he simply cannot finish it? And, more significantly, why not THE EX-HUSBAND?  And regardless, did the inventor chose this combination of ingredients because he had a fat ex-wife? Because she was gross? Because she would always order the more expensive menu item (8 bucks more for steak, shrimp or mahi)? Or was it simply because he had a little too many tequila shots the night he penned the menu.

                In reality, I think it’s a little sexist to call this item THE EX WIFE.  Let’s be fair here. As a divorce and family law attorney who represents husbands and wives, and, consequently, helps these folks attain the status of “Ex” husband and wife, I think it is only fair that TWE (it’s shorthand for The Whole Enchilada) should have a parallel entrée called THE EX HUSBAND.   Except instead of filling a burrito with the aforementioned ingredients, perhaps it should be filled with “the hundreds of meals made for him, the tons of laundry washed for him, the several times he forgot her birthday, anniversary, etc., and, a whole bunch of other crap that the individual restaurant patron gets to select from the restaurant’s Ex Bar. Yes, I am kidding, they do not have an ex bar.  In reality, I am sure that many ex husbands could fill their burritos with an equally unappetizing list of ingredients.  

                I had contemplated contacting the company directly to inquire about the choice of name for its signature kitschy item, but I figured maybe I’d send them a copy of this and see if they decide to reply.     

                Still regardless of the innovation or motivation for this menu item, wouldn’t it be much nicer if the Ex Wife (or, if they go with my suggestion, Ex Husband) was a dessert item?  I mean, who doesn’t love dessert.

 

Are Women Ready for Divorce? Seven Reasons Why They Probably are Not

       The first mistake was you married him (or her).  The second mistake was you undertook divorce without preparation.

        "Be prepared!”  Wasn’t that the Girl Scouts or the Boy Scouts motto? I am not sure because my mother, for reasons that evade me some 50 years later, refused to let me become a Girl Scout. Nonetheless, she did relentlessly drill into me that nothing substituted for preparation.  Thanks, Mom.

        Still, for every “ounce of prevention” instilled into me, I more often than not see clients who are not prepared for divorce in any way…economically, intellectually or emotionally. Not surprisingly, my observations are shared by many of my fellow family law attorneys.  Divorce lawyer, Rebecca Zung, has authored a book, Breaking Free: A Step-By-Step Divorce Guide to Emotional, Physical and Spiritual Freedom, that outlines seven BIG mistakes women (and, let’s be fair, more frequently men, make in the path leading up to and during the divorce.

         In the order that makes sense, here they are with my spin to them:

1. Zero to limited knowledge of family finances:  I have actually had many clients who walk in and, not only have no idea of where the money is, but have no clue as to what their spouses earn.  This is almost tantamount to the old joke where a woman doesn’t understand how she has no money when she still has checks in her checkbook. (I guess the updated version is “I still have a debit card…how can I have no money.”)  Ladies (and Gentlemen) YOU NEED TO KNOW AND YOU HAVE A RIGHT TO KNOW… If your spouse is secretive, ask.  Candidly, I think if couples shared more about their finances there would be less divorce.
2. Having no money to begin a divorce:   Too frequently a spouse has neither a rainy day fund to cover temporary day-to-day living expenses nor funds to begin a divorce proceeding for an initial retainer for an attorney.  Again, “fail to plan and plan to fail.”  Although you can request that a court award you temporary support and temporary attorney’s fees, first you have to have funds to begin the case. As lawyers we only have our advice and knowledge to “sell” and practicing law is a business.  So clients have to be prepared to pay.  After all, you wouldn’t expect to fill your cart with groceries, go to the checkout and tell the cashier you have no money and then leave the store.  Moreover, even after a motion for temporary support is filed, it could take weeks and even months to get before a judge.
3. Trying to “do it yourself”:  My favorite line is when a wife says, “My husband told me that I will get nothing from him if I hire a lawyer.”  So what’s new…this guy has run the whole marriage and now he thinks he’s going to run the whole divorce.  Since most people have not gone through a divorce before, they don’t know what to expect and what their rights and obligations are.  That’s why you hire an attorney.
4. Acting with your heart and not your head:  Of course divorce is emotional, and I expect to see clients angry, sad, downright depressed, confused, and, yes, even vengeful at times (more times than I’d like to acknowledge).  That’s another area where lawyers earn their keep (See #3 above).  Although, as a “person” I truly sympathize with the havoc my clients go through, when it comes to trying to get the case resolved, two attorneys can remove the emotional aspects of divorce and concentrate on solutions that will help the clients move on with life.  I not only encourage, but often suggest that my clients seek the aid of a qualified therapist to get them through these trying times.  Rather than see it as a sign of weakness, I believe it is a sign of strength to get through this tough period and make rational decisions in the process.
5. Believing Divorce is a Fair and Just Process:  It isn’t.  Period.  So if you think you’re going to get a better deal because your spouse cheated, or you were a devoted wife, forget it. (This swings both ways…if a person is cheated on and makes more money he/she could still be paying alimony at the end). Because there are areas within divorce law where judges have discretion (and enough latitude so that they don’t have their decisions overturned on appeal) your outcome may well depend on the judge’s personal life.  If he’s paying alimony he might be gentler on a husband in front of him. 
6. Reacting to your Husband’s Reaction:  Typically once the divorce process begins, even if it is initiated by the wife, after a while husbands usually accept the inevitable and the emotional aspect is removed, or, at least, downplayed. From that “ah ha” moment onward the husband negotiates a business deal. Wives, on the other hand, cannot understand why there is now this cold, callous and calculating individual who no longer wants to discuss things she still feels (and often rightfully so) are important (like the kids…) The sooner a wife can understand, if not accept, that she is in the throes of business negotiations, the sooner she will be in a position of strength.
7. A Settlement Too Soon and for Too Little:  Although Zung lists this as a final factor, I say this is an “it depends” factor.  I have heard people complain that lawyers drag a case out (costing more time and money).  Yes, unfortunately, some of my more unscrupulous colleagues may engage in this game, but more often than not, caring, knowledgeable and experienced attorneys know when more time and work  is needed on a case, and when the attorney has enough information to help to client make an informed decision.  However, listen when your lawyer says you will do better in court.  Your spouse (or his attorney) may try to “scare” you into a settlement. If you feel that way, reread numbers 3 through 6.

     Yes, the common theme running through all of these “mistakes” is acting emotionally instead of rationally.   Let’s face it; women are hard wired to act this way.  That’s why we have the babies (or maybe that’s the other way around) and traditionally (note- I said “traditionally”- not always) are the ones who devoted more time to child rearing- while the husbands were out honing their negotiating skills for future divorce negotiations.

      So the moral of the story is, if you’re about to divorce or are in the midst of a divorce, remember that old Girls Scout motto, whether you were a Girl Scout or not, and be prepared.  As part of your preparation get someone to help you remove as much of the emotional aspects as possible…a good lawyer and a good therapist, not to mention some rational friends, are a good start.

Divorce and Golden Books-Lessons Lawyers Don't Teach You

Everything I Need to Know I Learned from a Little Golden Book

Every Sunday (or at least those Sundays when I actually get to read the newspaper) I check out the list of “Best Seller” books appearing in the Lifestyle  section of the Sun Sentinel.   The ostensible purpose is of this exercise is to see if any of the titles and quick quips about the books catch my eye, but in reality more practical reason is in the event I am caught at a cocktail party with a bunch of the literary intellect,  I don’t sound like an uneducated, out of touch  buffoon and I can at least acknowledge that I’ve heard of a particular book.  (I will however, proudly proclaim that I do not know half the names of all the reality shows and other trite content that plagues the cable television airwaves, and I make no excuses for that when such programs make their way into cocktail conversation!)

Well, this week I came across the book Everything I Need to Know I Learned from a Little Golden Book, by Diane E. Muldrow.  The fact that the book is Number 8 on the hardcover nonfiction list, down from Number 6 the prior week attests to the fact I haven’t had much time to read the paper lately.

But, I digress.  The description notes that the author, a children’s book editor, “offers tips for adults to get the most out of life.”   The mere mention of the title brought me immediately back to my own childhood, and I could see my little bookcase, filled with those gold and black foil spines, with classics from the iconic Poky Little Puppy to Five Pennies to Spend to the Little Red Hen.  I remember my dad reading these to me and later, me, trying, to read them to him or my older brothers, or whoever would listen.

But it appears the premise behind the book is not unlike a book popular first published in 1988 entitled  All I Really Need to Know I learned in Kindergarten.  In short, those parables that Golden Books published using puppies, hens, bears, suns, moons, stars and some incredibly unrealistic humans (Moms with perfectly coiffed hair and spotless aprons serving Dads as they sat in their chairs with slippers on their feet yet still wearing their tie from work!)gave little readers a little insight into life, good and bad, right and wrong and (my favorite) doing the right thing!  Unfortunately, these lessons from our past are often lost as we become adults and have to deal with “real life problems.”  These lessons are often buried even further when two parents are divorcing or splitting up.  If you find yourself in such a situation now, or are already past the actual “legal” process and are living separately with children under the court ordered or (hopefully) agreed upon parenting plan, think about it. Are you reading a Golden Book to your children at night that contains a good “life lesson,” and then spending the rest of the time with your children ignoring everything the book teaches?    I am not referring to the process of going through a divorce or separation and the impact on the kids, but during and certainly in the aftermath of divorce or separation (which, by the way is the rest of your life), practicing what you preach (or at least read) to your children. 

•         You cannot teach your children to be charitable and giving to others and then not pay your child support

•         You cannot teach them to always speak kindly of others or (as my parents told me daily….when you don’t have anything nice to say, don’t say anything) and then trash your former spouse.

•         You cannot take children to a house of worship of any faith, expect them to learn from and live by the lessons of your faith, and then act rudely and impolitely to the other parent.

No need for me to go on with more examples. If you don’t get the point now you never will.

So keep reading those Golden Books (and all the other great kids’ books) to your kids…even when you think you are too tired; remember The Little Train Who Could. Then after you close the book and your children close their eyes, remember to live by those lessons.  Not only will it improve your children’s lives, it might just improve your life as well! 

WHERE THERE’S A WILL THERE MAY NOT BE A WAY

                  As a child growing up I was often   subjected to many trite “old sayings” where my parents gallantly attempted to grace me with “word of wisdom” designed to persevere in the face of adversity.  Thus, any time I became frustrated while pursuing a project and on the cusp of quitting, I would hear, “Cindy, when there’s a will there’s a way.”  I took this to heart (most of the time) and usually got to the end goal.

                  Clearly, however, when my parents said this, they never contemplated a “will” in the legal sense.  You see the will of a person who has gone through a divorce, may not truly establish the way this individual intended to distribute his or her assets upon death.

                  “How can that be?” you may ask. 

                  Glad you did ask. Quite simply, frequently in a divorce judgment or settlement agreement there are certain rights and privileges of surviving spouses, former spouses and heirs that, absent addressing in an estate plan, may not be what you think.  Similarly, sometimes even when a former spouse receives an asset in the divorce, the failure to change the beneficiary of that asset after the divorce may result in the other former spouse reaping benefits clearly not intended by the former spouse who passes first.  Most commonly this occurs where beneficiaries are not changed in life insurance policies, 401Ks, IRAs and other similar retirement accounts, and bank accounts.

                  “Okay, Cindy, so how do I avoid that happening to me?”

                  Yet another  excellent question.  First, if you hired an experienced family law/divorce attorney that attorney would have either included language in the marital settlement agreement (assuming you did not go to trial) that circumvented this problem, or, even better yet, reminded you in writing after the final judgment was entered, to review all of these similar accounts and make the changes to your beneficiary designations.  (Yes, all of my client’s get this).  Still, you have to actually act upon this after the divorce!  I pride myself on excellent client follow up, but even I don’t   check back a few months later after a divorce to make sure the client followed my instructions.

                  The second step is to make sure after you are divorced that you have all of your estate planning documents (and that includes the will, a durable power of attorney, health care surrogate and trusts) updated by an experienced estate planning and probate attorney.   Imagine becoming incapacitated having not updating who you appoint as your health care surrogate and then having your ex dictating your medical care!   You know another one of those expressions from my youth (though not necessarily worded quite this way from my parents)… Pay back is a… well, you know.

                  Now if you have gotten this far and actually do have a consultation with an estate planning attorney, make sure  you bring your final judgment of divorce and marital settlement agreement with you as well as copies of any previous estate planning documents.

                  The point of this blog is to remind you that there are a heck of a lot of things that people going through a divorce typically do not think about, and why would they?  That is why hiring attorneys who focus on these issues is well worth it. After all, without a will there is not a way! 

"Good" Grandparents Not Taxed Twice

Child support, under Florida law, is calculated based on two main factors:

1)     The net incomes of both parents, and

2)     The number of overnights that each parent has with the child or children

So what happens when a child lives with grandparents instead of the parents. These situations are not as uncommon as one might think. Well, certainly the grandparent is entitled to apply for child support. But whose income is considered for making the calculation of the support amount?

Both the First and Second District Courts of Appeal in Florida have consistently ruled that only the incomes of the parents are used to make the child support calculations, and not the income of the grandparents.

In both DOR v. Channey ,  37 Fla.L. Weekly D1369(1^st DCA 2012) and  D.F. v. Department of Revenue ex rel, 736 So.2d 782,784 (Fla. 2d DCA 1999), the courts determined that, notwithstanding that children lives with grandparents, only the two parents’ incomes were to be used to calculate the support.

The rational, in citing to Chapter 409 Florida Statutes, was that “It is…the public policy of this state…that children…be maintained from the resources of their parents…”

Now that’s a novel concept….parents actually being responsible for the support of their children.

Father's Day...Not Only A Hallmark Moment

                  Well, here we are, less than a week before “Father’s Day,” and I thought, what a good time for families going through a divorce, or families living in their post-divorce era, to contemplate an appropriate way to celebrate this “Hallmark moment” occasion.

                  Now, for a little history (and yes, I did look this up…I mean I can’t be an expert in everything and, lawyering aside, I was always enamored by history).  Turns out, my “Hallmark moment” remark is not that far from the truth, but the origins of the holiday were purer.  In fact, Father’s Day was an offspring from Mother’s Day that had its roots much earlier in our country’s history dating back to the Civil War era.

                  In the 1860s, a divided West Virginia town proclaimed a “Mother’s Work Days” and joined together mothers of Confederate and Union   soldiers in solidarity.  Presumably the appeal was that even though these mothers’ sons were on opposite sides of the battlefield, they were all mothers and loved their children.  Eventually, the Mother’s Day we celebrate today evolved into a national holiday (but I will save more of that history for next May).

                  Father’s Day didn’t catch on that fast.  As one florist noted, “fathers haven’t the same sentimental appeal that mothers have.” (Okay, keep in mind this was, from all accounts, in the early part of the 20^th Century..these mothers may have deserved flowers, but our country didn’t even give them the right to vote).  One of the first “celebrations” however, was held in a West Virginia church on July 5, 1908,(hey, do you see a pattern here…trivia question…what state first celebrated Mother’s Day and Father’s Day…?  I would never have guessed West Virginia…someday when you blurt out this little known fact and impress your friends and family you will thank me) where a preacher’s Sunday sermon memorialized 362 men who died seven months before in a coal mine explosion.  A year later, Sonora Smart Dodd, one of six children raised by a widower in Washington State, tried to establish the equivalent of Mother’s Day for fathers. Two years later, on July 19, 1910, the nation’s first statewide Father’s Day was celebrated. 

                  Nonetheless, apparently it was the fathers who “scoffed at the holiday’s sentimental attempts to domesticate manliness with flowers and gift-giving….often paid for by the father himself.”

                  During the 1920s and 1930s a movement arose attempting to combine Mother’s Day and Father’s Day into a Parents Day.  A radio performer of the day, Robert Spere said that, “both parents should be loved and respected together.” You see where that went…as it was apparently retailers who fought a consolidation of the holidays concerned that it would limit  consumer spending.                 

                  Father’s Day was not officially declared a national holiday until 1972 by President Richard Nixon (though I’m pretty sure we celebrate this in our house long before 1972). Okay, so he was a crook, but  he fathered Father’s Day!

                  But as noted above …Father’s Day did not have its roots in commercialism.  It seems that the nation’s fathers themselves were not interested in a holiday celebrated by gift-giving. That first West Virginia father’s day commemorated the loss of 362 fathers, parents to children who would never again feel a father’s love, or learn the life lessons he could teach.  And that second Father’s Day was promoted by a daughter who, having lost her mother, knew only too well the importance of a father.

                  So moms, yes, I know your children’s father may not be the “top dog” at present, and last month he did nothing for Mother’s Day,  perhaps he was late paying child support (or, heaven forbid, you’re paying it to him and you can’t stand it that you make more money than he does…but that doesn’t make him a bad dad, does it?), and he’s done a bunch of other things that not only do not make him a candidate for “Husband of the Year”(that’s why you’re getting divorced) let alone “Father of the Year,” (and sorry, my guy has both of those awards locked up). But your kids (those little men and women) are made up of equal parts of BOTH OF YOU.

                  So suck it up… Help your kids make it a special day for dad.  That doesn’t mean expensive gifts or any gifts at all.  It could be as simple as a card (hand- made is even better), or baking a cake or some cookies, or helping them plan a picnic (PB&J is fine…it’s the thought that counts).   Will it do anything to smooth relations between the two of you?  Who knows?  But what it will do is make your children feel that THEY have done something special for their father, and since they are 50 percent of him, it will likely make your kids feel special too.  And as parents, isn’t that really what it’s all about?

No Trust in Trusts as Largest Divorce Judgment Busts Billionaire’s Attempt to Conceal Assets

        A Geneva, Switzerland court last month handed down “the most expensive divorce in history,”  according to the happy wife’s lawyer.  At least I assume the Russian tycoon’s lawyer is happy since Dmitry Rybolovlev, the former husband, was ordered to hand over an estimated $4.5 billion (4 billion Swiss francs) to his former wife, Elena Rybolovleva, amounting to half of his fortune.

        According to the Guardian newspaper in London, the divorce began in 2008, when the former wife (and currently really rich person) filed for divorce in Switzerland.  Her attorney’s initial actions included winning a freeze on a number of the now only semi-uber rich Rybolovlev’s  assets, including a majority interest in AS Monaco, a French soccer club, a $295,000,000 interest in the Bank of Cyprus and Donald Trump’s former Palm Beach mansion, La Maison de l’Amitie, that he bought for $95 million in 2008. (Maybe he was trying to get away from his wife).

         It appears from the article I read that the sly Mr. Rybolovlev, who made his fortune in post-Soviet Russia in the fertilizer business, transferred a significant amount of his assets to other relatives and into trusts and offshore accounts, allegedly prior to his wife beginning divorce proceedings.

        The Swiss court was apparently not persuaded by the attempts to shield Mr. Rybolovlev’s assets from his wife through these trusts, and threw all of the assets into one very large pot, dividing that stew equally between the parties.  So, if you are contemplating divorce and want to put your trust in a trust to shield assets from your spouse, you may want to think twice.  This guy, with all of his money, should have been really good at trying to protect these assets.  He failed (at this point), and if he can’t win, think about your chances. 

       Not surprisingly, Rybolovlev’s attorney, Tetiana Bersheda, said the decision will be appealed. 

       Of course, there is always the possibility that the parties will settle before the appeal is resolved.  I mean, really, is it going to make a big difference in Elena’s life if she ends up with, say, $2 billion?  In the mean time, I suppose the fees each party’s legal team earns continues to mount as the case goes on… Hmmmmm.

       Oh, and by the way, Elena also won custody of the parties’ 13 year-old daughter.  Glad the child was such a priority.