QUESTIONS OF THE WEEK - Wednesday, January 23, 2008

Elisabeth H., Seattle, WA:

I think this whole situation with Britney Spears and Kevin Federline is so sad. Is there any way that Britney will be able to see her kids again? Also, will she be able to get custody of the kids back?

The Lawyer of Love:

What I think is sad is the amount of attention this case is receiving in the press. This case is actually not uncommon but you do not hear about it because the parents are not celebrities.

I think Britney should be asking the very same questions that Elisabeth is. Unfortunately, she does not seem to be interested in seeing her children. If Britney wants to see her children even in a supervised setting (which is the step before unsupervised visits), Britney needs to show the court that she has hit bottom and she is willing to do whatever it takes to address her own problems. Britney must demonstrate to the court that she is under the care of a doctor and seriously working on her problems. I would also suggest that Britney attend therapy with a psychologist or therapist who specializes in drug and alcohol treatment. Britney will be subjected to random hair follicle drug testing and regular drug and alcohol testing so she needs to insure that she can actually pass these tests. No, she cannot use a "friend's" hair or urine because the tests will be monitored (hopefully by a non-Britney fan). She may, however, pose some problems if she shaves her head again since her photos reveal that her collars match the cuffs -- bald.

This will constitute a start for Brit. Only the passage of time and her continued sobriety will be the key to her success in gaining unsupervised visits. The chance of regaining custody is not even within the realm of possibility at this juncture, since Britney cannot even follow these guidelines to gain visitation (supervised or unsupervised). Bottom line: If you cannot care for yourself, then obviously you cannot care for young children.

Rick L., Milwaukee, WI:

After 30 years of an unhappy marriage, the love of my life returned. We clicked instantly and picked up right where we left off 30 years ago. I have never been in love with a woman like this before and fear I never will again. I want to get divorced. However, I am not a spring chicken anymore and I am worried about losing the financial security that I have worked so hard for over the years. Do I follow my heart and regret it the rest of my life or do I follow my head and be more concerned about my retirement?

The Lawyer of Love:

You know my motto, "Life's Short. Get a Divorce." In other words, life is too short to stay in an unhappy relationship. However, you need to ask yourself the following questions before making a decision: Will security and money bring you more happiness than being with the love of your life? If you pass up the love of your life for security, will you regret this decision for the rest of your life? Will you resent the love of your life once you have divorced and do not have as much money? Once you answer these difficult questions, you will know which head to follow. Best of luck.

Paul W., Chicago, IL:

Once a couple works through the emotions of a separation and begins planning the process of divorce, what resources -- professional expertise or Internet research -- do you recommend on the financial aspects of the divorce? There's the division of assets, the alimony or child support, retirement plans to divide up -- a whole host of "dollar details" to have to work through.

The Lawyer of Love:

The Internet is a great starting place, but all-too often people think they are Clarence Darrow just because they read it on the Internet. If you have a brain, you will enlist trusted professionals and will not assume that all divorce lawyers want you to litigate. At the very minimum, your own accountant and divorce lawyer can make suggestions to provide you with the most beneficial division of assets, apportionment of liabilities and settlement terms for you. Keep in mind, depending upon the classification and nature of the overall estate, it may be necessary to enlist other professionals.

The divorce lawyer may assist with the parameters of due diligence by discovery, explain what each of you are entitled to receive, whether property is marital or non-marital property, the amount of child support and maintenance (formerly known as alimony) and your respective rights. The divorce lawyer may also assess the risk/reward ratio of settlement vs. litigation. For example, the lawyer can evaluate the proposed settlement and provide an opinion as to whether you should give more (or less) money to the spouse in exchange for not litigating the case and consequently saving money in the expenditure of attorneys' fees.

The accountant can assist in assessing the tax ramifications of paying or receiving maintenance, the return on the value of your settlement if you were to invest the funds, capital gains and the overall financial ramifications of the settlement.

Rich M., Tampa, FL:

My wife of 33 years told me she doesn't love me anymore and doesn't want to be with me. She also said she wants a separation but no divorce. What is the logic here? I'm 70, retired, and I was diagnosed with prostate cancer two years ago. My wife is 13 years younger. I don't think there's another man involved, but maybe another woman! Should I insist on a divorce once she gets out of the house? Yeah, we're still in the same house -- waiting to sell a condo so we can buy her a place to live. Care to move to Florida and represent me?

The Lawyer of Love:

I have good news and bad news; the good news is that if your wife is leaving for another woman they might let you watch, or join in! The bad news is that I cannot move to Florida to represent you. With respect to the separation question, it is advisable that you immediately meet with a divorce lawyer. Without knowing more about your finances, I can only assume because you have cancer that the "Mrs." wants to cash in on your pension (or other assets) in the event that you pass away. If you are separated and not divorced, she may still do so. Depending upon the status of your finances, there may be significant advantages to your wife if you are separated and not divorced. If you are divorced, her "spousal" rights will be terminated upon the date you are divorced and she will be entitled to whatever she receives in the divorce decree.

Make a visit to see a divorce lawyer. I wish you the best of health.

Heather M., Chicago, IL:

I have recently started dating a married, soon-to-be-divorced man. What future financial options are available to his wife after signing? Can she come back into the financial picture?

The Lawyer of Love:

The answer to this question is fact specific. Therefore, my answer depends on whether Mr. Married has minor children, children in college or he is paying his wife maintenance that may be reviewed or changed by the court. If any of these terms exist and his former wife can meet the dictates of the law, then his former wife may petition the court to seek higher child support, contribution to college (if your particular state law requires contribution) or a larger award of maintenance in the future.

Margie R., St. Louis, MO:

My fiancé wants to have a prenup and as much as I am not happy about it, I may agree to go along with it. He told me I need to hire my own attorney to represent me or it could be declared invalid. Is that true and, if so, how much should I expect to spend on legal fees?

The Lawyer of Love:

You must have your own attorney to protect your own interests in the negotiation and execution of a prenuptial agreement. Asking me to determine the amount of legal fees is tantamount to asking me to predict how long you will stay married. Legal fees are dependent upon the hourly rate, experience of the lawyer, how many changes are made and too many variables impossible for your Lawyer of Love to determine. Remember, the best revenge for executing a prenuptial agreement where your soon-to-be-spouse has more money is to spend it and live lavishly while you are married.

Beth N., Champaign, IL:

I've been dating my boyfriend off and on for five years. There have been times when he would say we should get married, but he has never acted on it. I never pushed the issue. When we have our breakups, I miss him badly and I know this is the person I want to be with. I have tried dating. What do you think I need to do to show him that I really want to be with him? Or does he even want to be with me?

The Lawyer of Love:

Guys will not get off their asses and marry you if you are available and too needy. He knows by your past conduct that you will always be there for him and return to him even after you break up. You are putting all your eggs into one basket and wasting precious time, my dear.

Stop thinking about marriage and this dude. Go concentrate on building your confidence, hanging out with supportive friends and family and dating several men who will appreciate what you have to offer. Only then can you assess whether this is the person you want to be with; chances are, once you work on that, you will see that he is not for you.

Tanya L., Los Angeles, CA:

Is there a version of the prenup for couples who just want to live together?

The Lawyer of Love:

Tanya, this is a good question. Please see my answer to this question here for your answer.

Lyn R., Cleveland, OH:

My friend's son has been married for 12 years and his wife just told him that their eight-year-old son is not his. I really could use your help because my friend is really very concerned. She loves her grandson dearly and yet she does not understand how this news may affect her family. What are the legal ramifications of the paternity issues on the inheritance and visitation of the grandparents and, of course, the dad?

The Lawyer of Love:

"Oh what a tangled web we weave when first we practice to deceive." This mother seems to have taken narcissism to a new level. There are psychological concerns and legal ramifications that are raised by your question(s). I am quite concerned about the psychological trauma that will likely affect this child if the parents tell him the truth. Since the husband has raised the child as his own for eight years, it will have a major impact on this child to find out that his father is not really his biological father. The child will likely demonstrate anger against the mother, too. If the parents do decide to inform the child, then it should be done with the assistance of a child psychologist or therapist and continued family therapy.

I am assuming that the father is desirous of a divorce if you are asking about visitation and grandparent visitation. If Dad seeks a divorce and seeks a DNA test to question the paternity of the child, and it is determined not to be his child, then technically Dad is not entitled to visitation. Also, the rules of inheritance do not apply because the child is no longer considered an heir. That does not prevent the father from leaving any part of his estate to the child by will or other estate-planning devices if he so chooses.

Depending on the laws in your state, the court will most likely appoint a guardian ad-litem or attorney for the minor child who may make recommendations for visitation depending on the facts of the case and the law. The parties may also agree to terms that may include visitation for the husband or grandparent visitation. If, however, the guardian determines that Dad does not have a right to visit with the child because he is not the biological father, then there are other arguments that may be asserted to preserve the relationship. For example, depending on the laws in your state and the creativity of your counsel, if there is a sibling, an argument may be made that the sibling be given rights to visit with his or her half-brother.

Lisa G., Chicago, IL:

My child is 18 years old and is now in college. He needs continued child support from the non-custodial parent. Child Support has closed his case because he is 18 years old. Do I need an attorney to take the non-custodial parent back to court to obtain continued child support?

The Lawyer of Love:

The facts you describe do not constitute a continuation of child support. Once your child is emancipated and in college or trade school, you or your lawyer may petition the court for the other party to contribute to the college education and certain other allowable expenses for the child while the child is in school. There are parameters set for the parent contribution. For example, your child cannot stay in school forever or expect contribution for majoring in "partying." Often, the judge will also require the child to take out loans and contribute some portion of funds toward his or her own education and expenses. It is interesting to note that although Illinois requires divorced parents and unmarried parents to contribute to a child's education, not all states maintain these statutory provisions.

Tim G., New Haven, CT:

What is the biggest mistake you see guys make regarding divorce?

The Lawyer of Love:

Staying in an unhappy marriage until they look and act like a character from the movie Night of the Living Dead.

Joe S., Bellevue, WA:

Does it often happen where the wife is made to leave the house? My money went to the down payment, and I have been paying the mortgage for years.

The Lawyer of Love:

If you are asking if she must leave during the divorce proceedings or at any other time, then the answer is not necessarily dependent on who paid the down payment or the mortgage. At any time, your wife may be ordered to leave the house if she has been determined to be violent or abusive toward you (or other household members) and you can prove the factors necessary to show domestic violence in your particular state.

Whether your wife can be ordered to leave the house after the divorce is over is dependent upon whether the residence is classified as marital or non-marital property. Without more information on when the house was purchased and the source of funds for the down payment and mortgage, it is impossible for me to determine if the residence may be classified as your separate non-marital property. If the residence was purchased during the marriage and the funds are marital, then the decision as to whether the house is sold or whether the husband or wife stay in the residence may be resolved by agreement or at trial by the judge. Even if you stay in the residence and the property is deemed marital, the fair market value will be apportioned accordingly on the balance sheet. In other words, if you want to retain the residence, your wife may be given other marital assets to offset the value of the residence.