The old cliché of “Every end is really a beginning” has had me thinking the past couple of weeks. I think about phases in my life and the lives of others. Whether it is death, retirement, or even divorce, often those things that seem to mark the end of something really lead to the start of other, new things.
Divorce is an end, and there is no denying that. I think more importantly though, and I speak from what I have seen being a legal assistant to a divorce attorney, that divorce can be a moment of clarity that helps people move forward (if people will let it).
Some people let divorce tear them apart and lead them to more mistakes, others allow/make divorce a means of finding out who they really are and what they ought to be doing. “It’s not what happens to you but how you respond that defines you” (one good cliché deserves another).
Seeing so much divorce has taught me that I want to act instead of being acted upon. It can be hard to recognize when we are reacting instead of being proactive (thank you Stephen Covey), but the reward is that much greater to those who choose proactivity over reactivity. The same hammer that shatters the glass forges the steel.
Utah Family Law, LC | divorceutah.com | 801-466-9277
If an ex uses illness to stop working, can she get more alimony?
Can being debilitated by illness be a reason for a spouse receiving alimony or more alimony than he/she would have received in the absence of the debilitating illness? Of course.
Merely being ill does not mean one will receive or receive more alimony than would have been received in the absence of the illness. Plenty of people have health troubles but hold full-time employment. One’s illness(es) must render one unable to support himself/herself, either fully or partially, before illness will result in more alimony being awarded, and even then, only if the spouse who would be paying alimony has the ability to pay the alimony and still meet his/her living expenses as closely to the standard living/lifestyle to which the parties were accustomed during the marriage.
And merely being able to prove “I am sick” or “I have X disease” won’t presumptively entitle you to alimony or “condition”-related alimony. The disease has to be debilitating despite your best efforts.
If you believe that you can fake an illness to get alimony or more alimony, that’s extremely difficult in today’s world. Amazing ways to verify or refute one’s claims to being disabled have been invented and are only getting more accurate.
If an ex uses illness to stop working, can she get more alimony?
Can being debilitated by illness be a reason for a spouse receiving alimony or more alimony than he/she would have received in the absence of the debilitating illness? Of course.
Merely being ill does not mean one will receive or receive more alimony than would have been received in the absence of the illness. Plenty of people have health troubles but hold full-time employment. One’s illness(es) must render one unable to support himself/herself, either fully or partially, before illness will result in more alimony being awarded, and even then, only if the spouse who would be paying alimony has the ability to pay the alimony and still meet his/her living expenses as closely to the standard living/lifestyle to which the parties were accustomed during the marriage.
And merely being able to prove “I am sick” or “I have X disease” won’t presumptively entitle you to alimony or “condition”-related alimony. The disease has to be debilitating despite your best efforts.
If you believe that you can fake an illness to get alimony or more alimony, that’s extremely difficult in today’s world. Amazing ways to verify or refute one’s claims to being disabled have been invented and are only getting more accurate.
Not really, at least not in the jurisdiction where I practice divorce law (Utah).
Even if you get a “no fault” divorce (“no fault divorce” means that you don’t have to accuse your spouse of being the cause of the marriage, i.e., of being “at fault” as the reason you are seeking a divorce), technically the law still requires that there be (and that you allege in your complaint for divorce) irreconcilable differences between you and your spouse that cause continuing the marriage to be impossible.
The reality is that because it is impossible for the court to know whether there really exist irreconcilable differences between you and your spouse, you could be perfectly happy in your marriage, file for a no-fault divorce, and obtain a divorce without the court being any the wiser and without so much as batting an eye.
Case files for child custody cases are classified as private and not accessible to the public, so unless the child is questioned in a public court proceeding (which happens so rarely one could honestly state that, statistically speaking, it never happens), we will never know (we can never know) what the child was asked or what the child said in response. Those judges who are willing to question children—as they are authorized by the Utah Code to do—almost never question children in public court proceedings but instead question them in chambers, although the questioning is conducted on the record and not covertly.
The law gives judges the opportunity to avoid hearing directly from a child by instead appointing an attorney for the children known as a “guardian ad litem” and thus avoid ever actually hearing any testimony from the child’s own mouth by having the GAL claim to have spoken to the child, albeit not on the record (and thus there is no objectively verifiable way to confirm this), to have elicited from the child his/her experiences, observations, feelings, opinions, and desires (again, without there being any objectively verifiable way to confirm this) and then, based upon literally nothing that is objectively verifiable, make recommendations to the judge as to how the judge should rule on the issue of the child custody award.
*The ostensible reasons that most judges give for refusing to question children or allow children to be questioned by an attorney or attorneys are that they:
A) fear that if parents find out what the child says, then the child may feel guilty for expressing a preference or preferences for one parent over another on particular subjects of parental abilities and fitness;
B) fear that once parents discover what the child had to say the child may be punished or retaliated against if what the child said upsets or offends one or both parents; and/or
C) conclude, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions.
Here is why I assert that such reasons are not rational:
1) First, parents are going to find out what a child thinks, feels, and wants with regard to child custody irrespective of whether the judge questions the child in court proceedings. Parents are going to learn of this (whether directly from the child or from his/her siblings, extended family members, friends, neighbors, teachers, counselors, coaches, ministers, etc.) before the child custody case is filed, during the pendency of the child custody case in court, at trial, and after the trial. It’s unavoidable. It’s inevitable. I submit that i) the belief that not questioning a child about his/her opinions and preferences regarding child custody will prevent the child’s parents from discovering those opinions and preferences, and ii) the believe that the only time and place in which the child will express such things is when questioned by the judge, is rather naive; it’s impossible to prevent parents from learning this information from and about the children.
Second, the value that many judges place on preventing children from feeling guilty or uncomfortable is misplaced. For two reasons. One, children who are going to feel guilty and uncomfortable about their child custody preferences, who are going to feel as though they are betraying a parent by expressing a preference for one over the other. are going to feel that way regardless of whether they express those preferences to the judge or a custody evaluator or a guardian ad litem (GAL). Two, getting to the truth about how children feel and why—when it comes to their child custody preferences—is far more important than sparing them from feeling guilty (especially when we already know they’re going to feel guilty regardless of whether they testify). Otherwise stated, preventing child testimony does no good: it protects the children from nothing, while denying the judge the clearest, purest sources of information about the children’s experiences, observations, feelings, opinions, and preferences as they relate to the child custody award.
2) If the judge believes that children will not be punished for expressing a preference for one parent over another, so long as those preferences are not expressed to the judge, again, that’s not rational either. It is impossible for a judge to prevent parents from learning a child’s feelings, opinions, and preferences regarding child custody. Thus it is impossible for a judge to prevent a parent who gets upset by those feelings, opinions and preferences from learning about them and from punishing and retaliating against his/her child once he/she learns of them. A judge can’t even mitigate the amount and severity of the retaliation and punishment because the judge is powerless to prevent the child’s feelings, opinions, and preferences from being discovered. And so once again, we find the court depriving itself of one of the clearest and purest sources of information and guidance on the subject of thee child custody award based upon a fear and a belief that has no rational basis. Closing one’s ears and eyes to what a child can say on the subject displays, frankly, a shocking disregard for the best interest of the child.
3) Concluding, without first questioning the child, that children in general are incompetent witnesses and that their testimony would be of little help to resolving child custody questions. See self-fulfilling prophecy. While it is certainly true that some children may be, for various reasons (such as being too young to talk, too young to have a consistent and reliable understanding of right and wrong and truth and falsity, placed in circumstances that call the veracity or credibility of the child’s testimony into question from the outset, etc.), one sure way to guarantee that we never determine how informative, probative, and reliable a child’s testimony may be and what weight to give such testimony is to dispense with allowing the child to testify in the first place.
Utah Family Law, LC | divorceutah.com | 801-466-9277