Kimberly Miller, Author at Collaborative Law Institute

May 25, 2016

In divorce, there are many things to consider with retirement accounts. Here are 5 important facts/questions to keep in mind when dealing with such accounts during a divorce.

Tax Free Division. In Minnesota, retirement accounts that were created during the marriage are typically treated as marital property and they can be divided. A division of a retirement account can often occur tax-free as long as it is an in-kind division and remains in retirement form for both after division.
Penalties and/or Tax Consequences. If either party chooses to cash out retirement dollars pursuant to a divorce, there may be penalties and/or tax consequences.
Comparing Retirement Assets to Other Assets. When comparing retirement assets to other assets, such as investment accounts or real estate, taxes need to be considered. Because many retirement accounts are pre-tax and will be taxed in the future, the values are not dollor-for-dollar the same as cash.
Comparing Value of Retirement Assets. There are different elements to consider when evaluating the value of a retirement account. The amount in the account is only one aspect. Also consider the tax status of the contributions (before or after-tax dollars) and how accessible the funds are before and during retirement.
Creativity in Retirement Awards. There are ways to divide retirement and cash out the assets to avoid some penalties. For example, a 401k may be divided during a divorce. If the recipient chooses to cash out some or all of the distribution as part of the divorce, they may avoid the 10% early withdrawal penalty, but they will be taxed. Creative resolutions regarding retirement may help parties to meet their goals.

Using a financial neutral during a collaborative divorce can help parties fully understand the financial implications of retirement dollars and come up with unique resolutions.

April 5, 2016

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When a couple divorces, the final decree or order from a Court typically dictates how property shall be divided, how the children shall be parented, and what support will be paid moving forward. The decree will give you the dates and amounts of payments. The decree will also tell you what amount each of you is awarded of accounts or who shall keep the house. But there are some things a divorce does not dictate. After a divorce is final, here are six things you (or your attorney) should do to finalize the division and move forward:

Divide cash accounts. Bank accounts and investment accounts can be divided on your own. You both may need to work together to close joint accounts or transfer funds from one individual account to another. At the end of the process, you should have no joint accounts unless you have agreed to own something jointly.
Pay-off and close joint credit cards. Joint credit card should be paid off and closed. You can take care of this on your own.
Divide retirement. Retirement accounts need to be divided precisely as outlined in the decree. Non-qualified plans (like IRAs) can be divided with a copy of the decree and direction from the account holders – you can do this on your own. Qualified plans (like pensions, 401(k)’s or 403(b)’s) need a court order and you will have to have your attorney draft this or hire a consultant.
Property title transfer. Title for any real estate that was awarded in the decree needs to be transferred to the individual owner. This can be done with a quit claim deed or order from the court that needs to be recorded with the county property office.
Health insurance. Set up your own health insurance if needed or work with your former spouse to continue coverage for them.
Estate planning. Your original will (if you had one) is no longer valid after divorce so you will need a new one. Hire an estate attorney to draft up a new will.

March 28, 2016

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With the recent warm weather and longer days, it is beginning to feel like Spring. Spring is a time of rejuvenation and growth. As the sun comes out and the temperatures rise, flowers blossom and buds sprout. People are out exercising and enjoying the warm weather. After a long, cold winter, as the days get longer, the community collectively is re-emerging. It is an optimistic, forward-looking time. There are a number of similarities to Springtime and the re-emergence after a divorce. When someone initiates a divorce, it often causes the fear and negative emotions to increase. There is added anxiety in the process, knowing that you have started but not yet really resolved anything. The divorce itself may feel like winter. You may feel isolated to stuck in a lonely process. You may have a hard time appreciating the positive things in your life and instead focus on the cold, scary parts. But once resolutions are found, it is a new beginning. Indeed, a collaborative divorce process (where both clients work together out-of-court on resolutions) can lead to meaningful resolutions that establish a great foundation for the future. Mutually acceptable resolutions and a process that supports and nurtures both spouses, can lead to a new normal. Once in place, those resolutions can feel like a whole new life. Like Spring, it can feel like the future is positive and there is potential for emotional and financial success. Relationships can feel refreshed or reinvigorated. People may have better mental health and feel good about moving forward. Like an extra bounce in your step or deeper peace — re-emerging from divorce has great possibility. There are options when you are divorcing. The collaborative process is a truly future-focused process that supports you during the process and then sets you up for success afterwards. So, if you are contemplating divorce, know that it gets better. There is a springtime waiting for you.

March 10, 2016

Collaborative divorce is an out-of-court, non-adversarial process for dissolving a marriage. It is common for one spouse being ready to move forward with divorce and the other spouse struggling to move forward in the process. Parties can be at very different points on the divorce readiness scale – one is ready, one is not. This is quite typical. The spouse not wanting to move forward is sometimes called “reluctant” or “in denial.” Because Minnesota is a no fault divorce state, one spouse not being ready does not need to stop the process from moving forward. The ready spouse can file for divorce and the process moves on in court with little control of the reluctant spouse. However, when one spouse is looking for a non-adversarial, out-of-court alternative (like collaborative divorce), there is more of a need to bring that other spouse along. The reluctant spouse really can delay the process and interfere with the non-reluctant spouse’s desire to divorce. It is interesting to think that one spouse can be committed to a collaborative divorce, but divorcing may not have to be a collaborative decision. So one party can control the process (with the other’s agreement), even if the other never agrees with the decision to divorce. It is common during the divorce process to have spouses be at different comfort levels with the decision to divorce. These levels of readiness can change throughout the process and even vary greatly from one meeting to another. The challenge often lies with helping the reluctant spouse commit to a collaborative process, while acknowledging his or her disagreement with the process. A good collaborative attorney can strategize ways to bring the reluctant spouse into the process and help move things forward. Ways to teach him or her about the divorce options and lay out the pros and cons of different processes for divorce.

March 1, 2016

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The Week recently printed an article on negative impacts of divorce on children. You can read the article here. It is a summary of research done around the world demonstrating how divorce negatively impacts children. Unlike the commonly known impacts of divorce on children and future relationships, this article identified some of the lesser known outcomes. For example, children of divorce are much more likely to begin smoking in their lives as well as end up on prescriptions for ADHD (such as Ritalin). Children of divorce often find less success in school and are more likely to drop out of school. The article also points to research illustrating that children of divorce have more health concerns than children who’s parents remain married. What the article fails to explore is how the process of divorce may impact these outcomes. Parents can choose the process to divorce. They could have an adversarial process, wrought with harsh communication, positional negotiations and overall negativity. However, an alternative, peaceful process, such as collaborative divorce can preserve the positives in a relationship and help children thrive after the divorce is final. Divorce does not have to result in long-lasting negative outcomes. A divorce done well, with care and concern, respect and honesty, can often lead to family structures that are better off than they were before the divorce. Children can be protected in that process and have positive futures. The negative consequences in the article are real (obviously the research shows as much), but a divorce done right can lead to much better outcomes for everyone. Contact a collaborative law professional if you want to learn more about divorcing well to protect everyone in the future.

February 16, 2016

In the Twin Cities, many family law attorneys offer a free consultation to learn about your options. This is a time to meet your potential new attorney and ask your questions. The consultation can serve three main purposes. First, you can learn about your divorce options. There are four general processes for divorce:

pro se/unrepresented where you go through the process without legal guidance;
mediation where a neutral third party helps you come up with the agreements;
collaborative divorce where both parties commit to a respectful out of court process with lawyers and other professionals guiding the process; and
litigation, the court-based traditional process. A good consultation should educate you on all of these options.

Second, the consultation allows you to learn some basic information about the issues in a divorce. The attorney can discuss the main legal issues that need to be decided during a case – such as child custody, parenting time, spousal maintenance, or property division. Clients often have specific questions about these categories and what may or may not be relevant to their situation. Third, the consultation allows you to get to know someone and see if it is a good fit for legal work. One of the most important aspects of a consultation is the opportunity for you to meet a potential attorney and see if you will be comfortable working with them. Your attorney is your guide. You may cry or express anger in front of this person – you need to feel comfortable doing so. In addition to legal adeptness and zealous advocacy, you also must be comfortable and trust your attorney. This is perhaps the most important element of the relationship. You should know that when you are just meeting an attorney for a consultation, the attorney cannot give you legal advice or answer legal questions with certainty. Because the consulting attorney does not have a client relationship, you and your spouse could meet with the attorney together. This is often a good way for you both to hear information together. When you receive the same message, you often feel less adversarial and more like you are both seeking a guide for the process. Please contact a collaborative attorney for a free consultation to learn more about your options.

January 5, 2016

As 2016 begins, many of us come up with resolutions for the coming year. Some people hope to exercise more, spend more time as a family or plan a vacation. For families who have divorced, the new year often symbolizes a new beginning. It is a time to establish a new norm. As a collaborative attorney, I often help guide families through divorce in respectful and supportive ways. I often hear from clients that they have goals and resolutions for a new year. Here are three common resolutions for families of divorce and ways all families can incorporate these values in their lives:

Establish financial independence and security. Entering a new year is a time when finances are now truly separate – with no tax connections. Be mindful of what you spend. Track your expenses and see how they match up against your projected budgets and income. Get a financial planner or, on your own, map out your financial goals for the year, including personal savings, retirement, and investment management.
Embrace co-parenting. Children thrive with routine and care. They love to be listened to and enjoy one-on-one time with both parents. They also sense stress and tension. As you establish routines and the children spend time with both parents, remember to treat the other parent with compassion as well. Avoid fighting in front of the children and support the time that they spend in both homes. Also learn to enjoy your off-duty time. When you don’t have parenting duties can be a great time to focus on yourself and prepare for your next parenting day.
Take care of yourself. As parents, workers, and functioning members in society, we often spend our tie focused on others. We take care of the children and our work obligations, but we often forget our own self-care. Use the new year to establish work-out routines or start exploring a new hobby. It is never too late to start improving yourself and the new year is a perfect time to make that effort.

December 15, 2015

Many collaborative law attorneys offer a free consult – 30-60 minutes to meet your potential new attorney and get some questions answered. The consult serves two main purposes: learn about your options and get to know your potential attorney. Until you have hired an attorney, you do not have confidentiality or a legal relationship with the attorney. The consulting attorney cannot give you legal advice or answer legal questions with certainty during this first meeting. The consulting attorney can talk to you about the processes available to you – litigation, collaborative law, or mediation. The consulting attorney can tell you the main legal issues that need to be decided during a case – such as child custody, parenting time, spousal maintenance, or property division. Because the consulting attorney does not have a client relationship, you and your spouse could meet with the attorney together. This is often a good way for you both to hear information together about the process. When you receive the same message, you often feel less adversarial and more like you are both seeking a guide for the process. Indeed, one of the most important aspects of a consult, is the opportunity for you to meet a potential attorney and see if you will be comfortable working with them. Your attorney is your guide. You may cry or express anger in front of this person – you need to feel comfortable doing so. In addition to legal adeptness and zealous advocacy, you also must be comfortable and trust your attorney. This is perhaps the most important element of the relationship.

December 10, 2015

An entry of divorce is a big step in the process. However, there is often a lot of follow-up needed to make everything final. Here are some of the things that need to be addressed post-divorce:

Certified copies. You should obtain a certified copy (official) of the divorce decree for your records.
Notice of Entry. Your attorney will draft a Notice of Entry to confirm everyone is aware of the entry and final outcome.
Assets should be divided. If you agreed to split bank accounts, pay off debt, or pay an equalizer to finalize a property settlement, these things should be divided and paid off.
Vehicle titles can be transferred. You can sign over the title on vehicles as outlined in your agreement. This can usually be finalized without attorney work.
Real estate title transfer. A quit claim deed or order from the court (called a Summary Real Estate Disposition Judgment) can be recorded with the county real estate office to transfer title in your real estate.
Retirement division. Some retirement accounts can be divided with notification from the clients. Other accounts, specifically 401k’s, 403b’s and pensions usually need an order from the court to divide. This order is called a Qualified Domestic Relations Order (QDRO). A lawyer usually drafts this order.

There can sometimes be a lot of follow-up to a divorce. A collaborative attorney can help you through the process and help make sure all follow-up items are completed.

December 7, 2015

Late night browsing on HBO recently brought me to a refreshing and wonderfully honest documentary on kids of divorce. The 30-minute film focuses on children who have recently gone through divorce – it asks them questions and captures their honest and candid responses. So much wonderful information can be gleaned form children. They offer unique perspectives on the realities they face. Even more refreshingly, they offer unique insights and rules for their parents. As always, children can guide parents through these tough transitions and help them move forward in ways that really matter to kids. Indeed, these little minds are often more grounded and reflective in their views than their parents. Some of the many words of wisdom from this documentary, are:

Keep reminding me this isn’t my fault – I need to hear it over and over again.
Be honest with me – talk to me honestly. I can handle it or I will le tyou know if I can’t.
Don’t put me in the middle, but remember I am important.
Don’t have me spy – get your own information.
There is not a big bright side of things – but try to look on the bright side. Point out to me the things that are good out of this and why I will be okay.
I miss my other parent in my heart. Know this and keep it in mind.
Give us more love than we need.

Don’t Divorce Me! Trailer

If you have children and are contemplating divorce, check out Don’t Divorce Me! Kids’ Rules for their Parent’s Divorce on HBO ON DEMAND or www.hbogo.com