Nolo’s Divorce, Custody & Family Law Blog

The issue of child custody and religion has come up in one of this year's most high-profile divorces, between pop icon Madonna and her film director husband Guy Ritchie.

Madonna is a follower of the Jewish mystical religion called Kabbalah, and her belief system doesn't include a Christmas celebration. In years past, the family has skipped Christmas altogether, apparently with Ritchie's consent. But this year, he wants to treat the couple's two children to "a traditional English Christmas," according to the British paper The Mirror, while Madonna wants the kids to be with her on Christmas Day.

What have we learned about custody and religion so far? First, that religious issues are coming up more and more often in custody cases. And, that custodial parents have the right to make religious decisions for their kids -- but that kids who are old enough can have their own opinions on these matters factored in by the courts. In Madonna's case, the divorce is not yet completed, so there's no permanent custody order and it's not completely clear which party has the type of custodial rights that would allow them to make religious decisions for the children. And both of her children with Ritchie (she also has a daughter from a previous relationship) are too young to have their two cents considered.

As always, we hope the parents can work things out and maintain amicable joint custody of their children.

Until now, divorced parents had to negotiate about who got to take the I.R.S. dependent exemption for each of their children. In general, the primary custodial parent has been entitled to the dependent exemption because the child usually lives with that parent more than 50% of the time. But often the non-custodial parent is the higher wage-earner and would benefit more from the exemption, so the I.R.S. would allow the custodial parent to sign a waiver allowing the non-custodial parent to take the exemption instead.

This is still the general rule for dependent exemption purposes, but it's no longer an either/or proposition for all purposes under a recently issued IRS Revenue Procedure. (There's also a very clear explanation of the new guidance on the McGuire Woods website.) Now, the IRS will treat a child as a dependent of both parents for purposes of tax treatment of Medical Savings Accounts (MSA) and Health Savings Accounts (HSA), as well as certain other fringe benefits of employment. For federal income tax purposes, both parents can now treat their children as dependents even if no waiver has been signed by the custodial parent, meaning that both can exclude from their gross income any money taken from an MSA or HSA and used for qualifying medical expenses.

This may seem quite technical, but for parents who use MSAs and HSAs, it's good news. Both parents can benefit from treating the child as a dependent, and they no longer need to negotiate (or argue) about who gets that tax benefit.

What in the virtual world is going on? Take a gander at these recent stories.

First up, a man in England is sentenced to 14 years in prison for killing his wife, from whom he was separated. Why did he do it? Because she changed her status on the social networking site, Facebook, to "single." He felt "humiliated" by this, so he drove to her house in a drug-fueled rage and stabbed her to death in her bed.

Next, a murder-suicide, also in England -- and I thought the Brits were supposed to be so mild-mannered. In this case, the wife apparently posted an entry on Facebook indicating that she was splitting from her husband. He became enraged and killed her and then himself, leaving their two young daughters orphans.

In a story that's less horrifying only because it didn't happen in real life, a Japanese woman "murdered" an avatar that was her husband in a virtual game world, after the husband "divorced" her in the game world. The woman used login information she got from her virtual husband when they were virtually happily married, to go into his account and "kill" his avatar. He complained to police, and the woman is being prosecuted for illegally accessing a computer and manipulating electronic data.

More on divorce and religion to add to earlier posts here and here. Last week, an Arkansas judge held a father in contempt of court after he began promoting his Mormon beliefs to the children. As reported in the Arkansas Morning News, the parents' divorce agreement states -- at the father's request -- that the children will be raised in the Protestant faith, and that neither parent will promote another religion. Nonetheless, the father and his new wife recently began involving the children in the Church of Jesus Christ of Latter-Day Saints, and the mother objected and asked the court to find him in contempt of the earlier order. The father argued that the restriction impaired his Constitutional right to freedom of speech, but the court held that the voluntary agreement was a valid contract that could be enforced by the mother.

Following a general trend in an emerging area of divorce law, the Oregon Court of Appeals ruled on October 8 that a divorced wife has the right to dispose of frozen embryos that she and her ex-husband created during their marriage.

The couple's agreement with the facility storing their embryos designated the wife as the person with the sole legal right to make decisions about them. The appeals court held that the agreement was binding on the divorcing husband and wife, and ordered that the embryos be destroyed at the wife's election. The court rejected the husband's argument that the embryos were alive, and followed other courts in finding that one spouse does not have the right to impose parental obligations on the other.

A blog post at www.divorce-lawyer-source.com says that there are more than 100,000 stored embryos across the country, and I agree with the assessment in that article that this issue is going to keep coming up in divorces as more and more couples use alternative reproductive technology to have children.

Think your divorce settlement divides everything equally? You've got nothing on the Cambodian couple who literally divided their property in half by sawing their house in two, right down the middle. The wife is keeping the half that's staying on their land, and the husband hauled away his half, mostly in the form of debris and materials. You can see a video of the result here.

This reminds me of the Brooklyn couple who both refused to move out of their home during their divorce, and ended up living in separate parts of the house after a judge ordered them to put up a wall.

Here's hoping your spirit of compromise was a little better-developed than that of these folks, who have taken the idea of equal division of property to the next level.

There are over a million active duty service members in the U.S. Armed Forces today, many serving in high-stress areas like Iraq and Afghanistan. Perhaps surprisingly, the rate of divorce generally among service members is comparable to that in the general population (although there was a sharp increase between 2001 and 2004, a period when deployments increased significantly). But within the military, women divorce at nearly twice the rate of men. There's lots of speculation about why in this article at Divorce360.com, but no solid answers.

Numbers aside, the reality is that divorce raises special issues for military spouses in almost every aspect of the divorce process, including calculating support, dividing property, establishing a parenting plan, and dealing with retirement and insurance benefits. The Armed Services Legal Assistance Office provides some help for military families going through divorce, and there are websites that offer free legal information as well. Also check out Nolo's Essential Guide to Divorce -- the updated 2nd Edition has a new chapter on military divorce.

How many blogs would a divorce blogger blog if a divorce blogger could blog blogs? Huh? But seriously, someone who doesn't even blog about divorce (her blog is on a dating/relationship site) has done a ton of work to bring you this list of 50 useful divorce blogs. Except for the omission of this here blog, it's pretty cool. Enjoy.

A recent article in Australia's National Newspaper argues that divorce is "not just heartbreaking -- it's bad for the environment." Can this be true? And is there anything to be done about it?

Like the United States, Australia has a high divorce rate; approximately 40 per cent of marriages there end in divorce. Matthew Warren's article in the business section of The Australian points to the doubling of households and the resulting inefficient use of resources that occurs when couples divorce. The number of people living in a household, he says, is the biggest single determinant of how much energy and water are used and how much waste is generated. Even though it seems counterintuitive, more people in the household means that fewer resources will be used.

Of course, owners of rental properties, suppliers of small electronics, and furniture stores will benefit when a divorcing family needs to duplicate its household furnishings. But consuming more of these items isn't good for the environment, either. The mantra of "reduce-reuse-recycle" is difficult to apply when two households are being created where once there was one.

Unfortunately, there's no simple, immediate solution to this problem. People who can't stay together for the sake of their children surely won't be able to stick it out for the sake of the environment, either. But as Warren argues, we can start thinking about the bigger picture and considering options for creating more efficient, environmentally sustainable societies.

Do you even know what a Divorce Financial Planner is? If not, you're not alone -- Divorce Financial Planners (sometimes also called Divorce Financial Analysts) are a relatively new addition to the kinds of assistance available to people going through a divorce. In fact, the profession has only existed for 10 years, but it's growing as a result of more frequent use of DVPs by divorcing parties, divorce lawyers, and mediators.

A Divorce Financial Planner can help divorcing parties assess their situation and make smart decisions about dividing their assets and assigning their obligations. DVPs look at your entire financial picture, taking into account not just what looks like a fair division in the present, but also the future ramifications of potential settlement scenarios. They'll consider tax consequences, the present vs. future value of money, each party's retirement needs and career plans, and whatever else needs to be factored into your financial planning.

Not everyone needs a DVP -- if your assets aren't complex and you haven't been married long, you probably don't need the comprehensive advice. But if you've got a house, more than one retirement plan, and investments -- and especially if it feels overwhelming to you to consider all the possible options for settlement -- you might benefit from some professional help. If you're cooperating in your divorce by using mediation or collaborative practice, you can share the cost by having one DVP assess your situation. 

To find a DVP, ask your attorney if they're using one. Or, go to the website of the Association of Divorce Financial Planners or the Institute for Divorce Financial Analysts and find a DVP in your area.