How to not lose your house in a divorce

(See also Negative Equity and Divorce)

The court has the ability to grant “exclusive possession” of the marital residence to one of the parties while the divorce proceedings are still in progress. This means that the evicted party cannot enter the house without the permission of the occupant and can literally be arrested for trespassing. That also means you cannot enter and take any of your possessions from the house.

According to this article  in the Las Vegas Review Journal, fewer than 20% of motions for exclusive possession are denied. Meaning you have an 80%+ chance of being evicted from your own home should a motion for exclusive possession be filed against you. 

One of the judges in the article cites three grounds for allowing divorcing couples to stay in the marital home: 1) lack of financial resources to establish two separate households 2) the best interests of the children and 3) no history of domestic violence. 

So the judge has given clear guidance on how to stay in your home:

1) demonstrate a lack of resources to establish a second household (which is why lawyers tell you NOT to move out of the home - I guess this would even extend to staying temporarily at a family or friend’s home),  

2) demonstrate it is in the best interest of your kids to stay home (can be tough to prove - expect her to argue that the tension you both living under the same roof is psychologically damaging the children)

3) avoid a domestic violence charge (another tough one - there are numerous cases of false domestic violence charges AND judges erring on the side of caution even without physical evidence of any abuse - see this link for a wake up call).

(Of course, when the divorce is finalized you will need to give half of your equity in the house to your ex-spouse - this might entail selling the house or, if you are very lucky, you might be able to re-finance the house and buy out her equity - if you ever agree on what the equity is worth).

In my case, I had moved out of the house to escape constant verbal abuse and had rented a single room in a friend’s house. Not only did the judge award exclusive possession to my soon to be ex-wife but also ordered me to continue paying all mortgage and utility payments as well as child support. The judge also refused to order my ex to get a job - despite the fact that the children were teenagers and she had a teaching license. My ex ended up living in the house for almost 3 years rent free without any bills while collecting child support and taking up to 90% of my net income every month. Welcome to the “justice” system. (BTW, she also made it difficult for realtors to show the house to potential buyers - even when the court ordered that the house be placed on the market).

Motion to Show Cause

A motion to show cause (why you should not be held in contempt) is simply a claim by one party that the other party has violated the court’s orders and should be required to a give a reason why they shouldn’t be held in contempt (and penalized) by the court. Examples could include hiding assets, failing to provide documents, denying visitation, not paying child support or alimony, or violating a restraining order.

The court has wide powers to punish someone who disobeys its order, including financial penalties and jail time. The court usually gives someone a chance to remedy the behavior (such as paying child support arrears and attorney fees) before ordering jail time. Judge Pomrenze of the Clark County Family Court in Las Vegas Nevada is infamous for jailing a lawyer who argued with her (she refused to hear his motion without an affidavit of financial condition). Contempt extends to violating a judge’s orders both directly (i.e. inside) and indirectly (i.e. outside) the court.

The Nevada Revised Statues (NRS 22.100) indicate the maximum penalty for a contempt is $500 or 25 days in  jail. However, NRS 22.110 goes on to say “when the contempt consists in the omission to perform an act which is yet in the power of the person to perform, he may be imprisoned until he performs it”. Ouch!

Motions for contempt in divorce cases are often brought against fathers for failing to pay child support or violating protection orders. In my experience, the court is very reluctant to find a mother in contempt for violating a visitation order (the most common complaint of fathers).

Preference Theory

I just finished reading a fascinating article on gender inequality by Catherine Hakim of the London School of Economics. The bottom line is that:

“Preference theory predicts that men will retain their dominance in the labor market, politics, and other competitive activities, because only a minority of women are prepared to prioritize their jobs (or other competitive activities) in the same way as men. In the long run, it is work-centered people who are most likely to become high achievers in demanding occupations (Hakim 2006).”

It seems that sociology is picking up on Warren Farrell’s message on why men earn more.

Hakim goes on to write: “It is time to accept that the equal opportunities revolution has served its purpose, and the feminist goal of 50/50 sex ratios in all occupations and jobs is unrealistic, given the diversity of tastes, values, and preferences among men and women. Social engineering attempts to impose identical outcomes and eliminate occupational segregation completely cannot succeed, being based on selective research evidence and incorrect assumptions.”

Powerless Fathers

Glenn Sacks reports on the case of a UK judge who concludes that fathers are powerless against vengeful mothers (originally reported in the UK’s Daily Telegraph).

The man’s 14-year-old daughter, who cannot been identified, had been influenced by a “drip, drip, drip of venom” from his ex-wife, who wanted to deny him his paternal rights.

Lord Justice Ward said the case was bordering on the scandalous but the court was compelled to act in the interests of the child.

Because of her mother’s “viciously corrupting” influence, it would cause the teenager too much distress if she spent time with her father, he said.

In London’s Civil Appeal Court, Lord Justice Ward said: “The father complains bitterly, passionately, and with every justification, that the law is sterile, impotent and utterly useless.

”But the question is ‘what can this court do?’ The answer is nothing.”

This generated some sad tales and interesting perspectives on Sacks’ blog, including this one by Tim O’Brien:

You’re saying that it’s too hard and too traumatic to change custody for that kid. So you’re saying that the status quo — living with a mom who ONLY puts her own needs above her child — is somehow better?! In the short term, yes it’s incredibly difficult, but in the long term all you’re doing is putting off this kid dealing with her mother’s abuse until she’s 30.

Just because it’s hard doesn’t mean it’s wrong.

And also, had they upheld the law early on, the situation wouldn’t be as dire as it is. The reason these women interfere with custody is because THEY KNOW there will be no consequences, no risk.

and this disturbing tale by stillsober34:

The mother of my child made many false accusations and alleged that I was a drunken, doped up father, incapable of taking care of my child 7 years ago. With an ex-parte court appointment (that I was never aware of), she gained temporary sole physical custody that was to return to normal “visitation” after several “supervised visitation” visits and a drug assessment for both parents. I complied, paid the fees to do supervised visitation as ordered, but the ex simply refused to participate. I tried using the “self help” window available at the family court house, but it is somewhat useless. I had no money for a lawyer because of overwhelming child support payments and a low income. I did what I could and sent letters, and made lots of calls to try and talk to both the Ex, and my child, but the letters and calls were never returned. Six years later, I managed to make enough money to pay off the back child support arrears, amounting to about $6,000.00. The ex immediately took this money, hired another lawyer and had her new husband file a petition to terminate my parental rights (to adopt my child) for the reason that I haven’t tried to contact my child in the last twelve months. It didn’t occur to me to send the letters certified, so I have no proof. The judge dismissed the petition initially, but the ex and her attorney demanded a full trial. Now, after 11 months of therapists, evaluators, and court dates for trial pushed out 5 times, I still have the burden of proof to say I tried to contact my child, when all this time she was kept from me. I am now in debt for another $16,000.00 for all of this, and my now 12 year old daughter hates my guts because all she knows is what her mother has told her. I have a therapist interviewing everyone involved to try to prove my child was alienated, but I don’t seem to be getting anywhere. Even if I “win” and manage to keep my right to be a Father intact, I face the overwhelming task of regaining the love and trust of my child. I love my kid, but I wish that I had never procreated in the first place. My life has been one of poverty, pain and hell for 8 years now. People wonder why Fathers are angry? It is difficult to continue to fight the good fight and remember the reasons for it. How many Dads just give up the fight, knowing they can’t win?
Like it or not, the feminist machine is wrong. Parental Alienation is real. Look up “Malicious Mother Syndrome”, it reads like a resume for my ex wife. No feminist knows the real pain of continuous grieving for a lost child. I am not even allowed to tell my child the truth (provided I could even speak to her). There is no Patriarchy. It has been dead a long time, and just like Elvis, no matter how many times it is mentioned, it isn’t coming back to life. Welcome to the MATRIARCHY gentlemen. What now? How much pain can we take before justice is served?

Alimony in Nevada

Alimony (often known as spousal support or spousal maintenance) is alive and well in Nevada. Unlike other states, there is no statutory formula for calculating alimony in Nevada - meaning its all up to the discretion of the judge and represents a huge fee generating opportunity for lawyers.

There was an attempt to devise a alimony formula in 1997 (known as the Tonopah formula). The formula takes into account the marriage duration and lower earning spouse’s education, disability status, and age.  The calcuation can range from 0% to 50% of the difference in incomes (after deducting child support), increasing with a longer marriage, older spouse, more disability, and less education. In their wisdom, however, the Nevada Supreme Court has banned family court judges from using the formula to determine alimony.

The result is a list of “factors” to be weighted. The factors vary from case to case and even the same factors have been given more or less weight in different cases. Thus, the judge must weigh each of the relevant factors in determining an alimony award and duration.  These factors include:

• age and health of the weaker party (usually the wife)
• property/assets of the wife
• whether wife contributed to the development of the husband’s career
• husband’s income
• wife’s premarital job training
• wife’s job and income potential
• kids
• marriage duration

The wife can also be awarded “rehabilitative” alimony to enable her to train to re-enter the workforce. Alimony can also be awarded indefinitely (although this seems to be getting rarer).  Alimony is also taxable to the recipient and tax deductible by the payer (actually lowering your adjustable gross income).  

In my experience, much money can be saved by agreeing to use the Tonopah formula and moving on. Litigation over alimony is costly (to gather evidence on all the factors) and the outcome is extremely uncertain because the judge can rule in almost completely arbitrary manner (and doesn’t have to justify his or her decision). Unfortunately, many lawyers like to tell their clients they can get a much better deal than the formula (my ex was given a number almost double that of the formula and eventually received about 50% more at great cost to us both). My advice go with the formula or something close and get a stipulation (agreement) in writing filed with the court ASAP.

Personally, I believe that alimony is simply “child support for adults” and, except for a few extreme cases, has outlived its used-by date.  

Stop Loss

I went to the movie Stop Loss last night. One of its messages was how the army uses the full power of the state to coerce soldiers into serving another tour in Iraq.Basically you sign a contract to serve 5 years and then the President tells you you can’t leave and have to take another tour of duty. If you refuse you are branded a fugitive - the only option being to flee to Canada or Mexico.

In my mind, non-custodial fathers are in exactly the same position. A parenting or divorce agreement can be changed at any time and if you rebel you get slapped down by the full force of the system. Except you can’t flee to Canada because they have the same system!

I had visitation built into a parenting plan and final decree but the judge refused to enforce visitation because in her words, “they are old enough to choose if they want to see you”. So much for all the courts BS about mediated parenting plans etc. Of course, deciding not to pay child support would result in all sorts of penalties, including imprisonment.

Pre-Trial Discovery

According to Wikipedia: discovery is the pre-trial phase in a lawsuit in which each party through the law of civil procedure can request documents and other evidence from other parties or can compel the production of evidence by using a subpoena or through other discovery devices, such as requests for production and depositions. The US is unique among common law countries in having a discovery process.

In family court in Nevada, the judge will set a trial date and a discovery cut-off date once the parties indicate that they cannot reach a settlement (via a joint conference report). The trial may occur as far out as 6 months or more from the date of the joint conference report and discovery may end only 14-30 days before trial. Both sides then have this period to conduct discovery. The nominal purpose of discovery is to collect facts to build a case for trial.  In practice, discovery can become very expensive.  As Wikipedia states: The use of discovery has been criticized as favoring the wealthier side, in that it enables parties to drain each other’s financial resources in a war of attrition. For example, one can make information requests which are expensive and time-consuming for the other side to fulfill; produce hundreds of thousands of documents of questionable relevance to the case; file requests for protective orders to prevent the deposition of key witnesses; and so on.

The major forms of discovery are: request for production of documents (RFPs), interrogatories, and depositions. Basically, each side can ask the other side to produce any document they wish (including electronic documents), can ask up to 20 questions, and conduct sworn interviews of witnesses that are recorded and can be produced as testimony at the trial. You are required to make your best efforts to provide documents, answer questions, and attend depositions. In theory, the court can fine a party for not responding to discovery requests (without very good reasons). The Nevada courts even have a discovery commissioner to hear complaints.

I say “in theory” because things work very differently in practice. I prepared my own RFPs and interrogatories using Bender’s Forms of Discovery to save on legal fees (even lawyers don’t make up their own discovery requests - they consult this manual). After 3 months, I received no response from her attorney and the discovery commissioner’s office never returned my calls.  With only 14 days to trial, I filed a motion (on an order shortening time) before the judge requesting that the opposition be found in contempt for not responding to ANY of my discovery requests.  The judge refused to hear the motion before trial. The opposition then filed a motion (on an order shortening time) requesting that the trial be delayed because I did not respond to THEIR requests (despite the fact they had received hundreds of pages of information from me). The judge granted their motion (forcing me to cancel an overseas business trip to attend the hearing) and delayed the trial another six months. My sin was not including monthly payslips from 4-5 years ago because our HR system did not have data going back that far. The judge determined that I did not make my best efforts to get the information (despite including five years of W-2 and 1040 tax returns). So, I was admonished despite the fact they had given me NO information.  They were not penalized in any way and I was ordered to continue paying 90% of my income in temporary support for another six months until the new trial date.

BOTTOM LINE:

1. Discovery requests are easy to make by using Bender’s Forms of Discovery.

2. Discovery can be very costly (particularly depositions where you must pay for your lawyer to sit through the testimony and a court reporter).

3. The court may decide your best efforts to get information are not your best efforts and fine/penalize you as it sees fit

4. The court may allow the opposition to delay and withhold information without penalty.

Emergency motions

Any time during the divorce proceedings, either party may file a motion with a request for an order shortening time (OST).  This basically requests the judge to sign an order that allows the motion to be placed on the judge’s calendar as soon as possible.

Obviously, an OST is very important if some issue is time sensitive and requires the court to make a quick decision. Normally, a delay of 4-6 weeks can be expected after filing a motion - whereas 1-7 days might be more common for a motion with an approved OST.

In my experience, my ex has filed three OSTs that the judge has granted - one claiming the children needed “urgent” psychological treatment because I cut off their cable, and the other because my ex needed a ruling to meet a college application deadline. In my opinion, the OSTs were both bogus and used to get other issues in front of the judge while citing an ”emergency” involving the children.  

My sole request for an OST to order production of discovery documents immediately before trial was denied - in this case her lawyer had provided zero responses to my discovery requests just two weeks before trial and had not submitted a pre-trial memorandum as required by court rules. My request was denied despite the fact that I had no information to make a case.   Her counsel then filed a motion under OST claiming that he had not received certain discovery documents (from the hundreds of pages I had submitted) and the judge not only granted the OST but postponed the trial for six months after the hearing!

LESSONS LEARNED 

What can I conclude from this? OSTs are solely at the discretion of the judge. Any OST that screams about an emergency (physical or financial) for a wife or children will likely be granted. I tend to imagine that judges use the “headline test”, thinking, “would I like to see this story on the front page on the newspaper in the morning?”.

Procedural motions are unlikely to be granted (unless you are a lawyer who has donated to a judge’s election campaign).

 Just my $0.02 worth - comments always welcome.

Sad but true…

A reality check from Lisa Scott’s Real Family Law website:

WHAT TO DO BEFORE THE RESTRAINING ORDER COMES

Adapted from Presentation Given by Lisa Scott at the Father’s Rights Seminar, Sponsored by FR Investigations, August 4, 2004, Auburn, WashingtonEven though this talk is directed mostly at men, everything that can happen to a man in this system can happen to a woman. Women should not be complacent, or even gleeful, when these things happen to men, because they could be the next to be falsely accused, suffering criminal arrest, incarceration, removal from home and denial of access to children.

Women should not make men the enemy, any more than men should make women the enemy. Women should stop and think, how would I react if I was taken away from my children and told I should be happy to get to be with them every other weekend?

Repeated studies show that children of divorce are most damaged by high conflict between their parents. If parents would just call a truce and agree to do what’s best for their children, there would be a lot less fighting. Unfortunately, the system tends to encourage custody battles, because the winner not only gets the kids, but usually the house, and of course child support. Plus, the parent who has the children most of the time has the most control over what happens to them. As long as the winner is rewarded with the goodies, there will continue to be wars fought over the children.

Protection order against domestic violence

Even a casual search of the internet will reveal much about the misuse of temporary restraining orders (TRO) in divorce court. Judges tend to “err on the side of caution” when a claim of domestic violence is made and tend to issue more temporary protection orders than they reject (TPO). Given there are no consequences for making false reports then it should come as no surprise that filing for an order of protection for domestic violence or OPDV (as it is known in Nevada) is a common tactic for female litigants. Maybe she also gains some sort of sick satisfaction knowing that a deputy has served him the notice of a hearing for a protection order at his place of employment.