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Divorce Law Family Law Marriage Property issues

Division of Property in a Divorce: Is Equitable Distribution More Equitable?

division property usa divorce(US family law) One of the first things a couple in the process of divorce will need to know is if the state you live in is a community property state or an equitable distribution state. A community property state allows for all of the property acquired during the marriage to be, loosely speaking, divided in half. An equitable distribution state differs in that it aims to provide a fair and balanced approach based on many different facts about the marriage and both parties.

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Child Custody Children Divorce Law Family Law Finance Marriage Tax

A Collaborative Divorce Interview: Clients and their Attorneys

In November 2013, Tyler Nelson and Pamela Nelson of Tampa, Florida, sat down for an interview with The World of Collaborative Practice Magazine.  The Nelsons had decided to Divorce using the Collaborative Process, as they did not want to fight in Court and they wanted to focus on the best interests of their daughter.  Tyler was joined by his collaborative attorney, Adam B. Cordover, and Pamela was joined by her attorney, Joryn Jenkins.  The interview was conducted by carl Michael rossi.

You can find the full interview at The World of Collaborative Magazine, and you can find excerpts below.

Tyler: A child needs her mother and father, even if they’re not together…Pamela was the one who found out about the collaborative process and told me about it. You know, you’re always going to have some kind of fear. Is this going to work out like it should? What is everyone going to have to do to make this work out? But as soon as I spoke with Adam about everything, all of my fears were gone. He explained everything and the way it was going to work, how it was going to work. I’m pretty sure Pam felt the same way, as soon as she spoke to her lawyer, she probably went through everything. That’s the one good thing about our lawyers, that they explained everything that was going to happen before it happened.

Pamela: Not everybody knows about collaborative divorce, yet. We really didn’t know until it was explained to us. It was a better process for us, rather than go to court and fight.

Tyler: Everything that needed to be addressed, has been addressed…Everything that we wanted to agree on, we did, and everything that we wanted put down on paper, it was.

Pamela: We also have different visitation rights with our daughter. More than, likely, other people have. We already had that situated, and we just needed to put it on paper. It was kind of different than normal people, where they only see their kids every weekend. We do our schedule every week, and we split the holidays. We had to work that out, and put that on paper.

Pamela: The judge actually said that she agreed that we were doing it the best way and that we were dealing with the divorce in a good way. Instead of people fighting and it being a bad thing, it was actually a good situation.

Adam: It was interesting that, at the end of that final hearing, Tyler and Pamela had their pictures taken with the judge. It was described afterwards as being not so much like a divorce setting, but strangely enough kind of like a wedding setting. They had their picture taken with the officiating person. Judge Lee was fantastic and was praising Tyler and Pamela for dissolving their marriage in a way where they keep their focus on their children and not on fighting. To divorce in a way that
was in the best interest of their daughter.

Joryn: I can’t remember doing another divorce where the judge congratulated the parties afterwards, and I’ve been doing this for thirty years.

Tyler: (regarding an interdisciplinary team) They told me about the financial manager [Monicas Ospina, CPA], and she was great. So was the psychologist [Jennifer Mockler, Ph.D.], she was great. They were all great.

Pamela: [The financial professional and mental health professional] were very helpful. They helped us with our tax returns, to see who should file for dependency exemptions to get the most out of it. And the mental health professional helped us stay on the same page with our daughter to make sure that we were doing the right thing. The psychologist made sure we were on the same page in how we were raising our daughter and determine what’s best for her.

Pamela:  (regarding the collaborative process) There’s no arguing, you know, there’s not really fighting or going back and forth or going to court or having the records be there out in public. There’s more privacy. I would definitely recommend it to anybody considering divorce.

Tyler: I have to agree with her…If you go and do the collaborative divorce, you have a lawyer there…They are not trying to make us fight. They are just there to write down what we want, and that’s the best thing about collaborative.

Tyler: We all sat down and talked. There was no arguing.

Pamela: The professionals worked around our schedules instead of us being court ordered to go to court on certain times and dates.

Pamela: (regarding going to the state-mandated parenting class) Everyone else was crying and hated their ex and wanted to kill them and I was like “well,
we’re friends, and everything is good.”

Tyler: “If anybody is thinking about doing a divorce, they should look into a collaborative divorce instead of jumping into it and going to court and fighting.”

Adam: “What I found excellent about this process and this couple, as opposed to the court-based divorces that I generally go through, is that when we were sitting around the table together with the mental health professional and financial professional, and we were talking, we weren’t just talking “civilly.”  We were talking in earnest.  We were actually just joking around at a few times and able to communicate in ways that you just couldn’t imagine doing in other divorce processes, even at a mediation table when there is the threat of litigation.

Joryn: “It is a much more protected environment, I think. It freed me up, and I’d like to think Adam, as well, to feel like we were teammates. We didn’t have to be adversaries, even though we were both representing different interests.”

Adam B. Cordover, Joryn Jenkins, Monica Ospina, and Jennifer Mockler are all members of Next Generation Divorce, formerly known as the Collaborative Divorce Institute of Tampa Bay.  Next Generation Divorce is made up of professionals dedicated to respectfully resolving family disputes.

Categories
Child Custody Child Support Divorce Law Family Law

Getting the Most Out of Your Family Law Retainer

family-lawThe day that you most dreaded in your divorce has come—the receipt of your attorney’s billing statement.  After having put it aside, and having found ten other things to open in its place, you are left with the one, unopened envelope, bearing your attorney’s logo, and certainly carrying no news of anything good.  You carefully open the envelope; you are surprised by how many pages fit into that one envelope.  Unfolding the pages of the billing statement, there it is for you to see: every single minute spent on your case, either detailed so precisely, you find it irritating that your lawyer would have been so picayune, or detailed so generally, you cannot understand how that much time was purportedly spent, doing so little.    And what is the only thing missing?  The majority of your initial retainer.

As a St. Petersburg practicing attorney with 26 years of experience in the Tampa Bay area of Florida,  the last twenty years having been spent in family/criminal and personal injury law as Attorney Hanks, P.A.,  I am here to tell you that I take no greater interest or appreciation in creating that billing statement, than you did to open and read it.  And not matter how much I prepared you for this moment when you first read and signed my fee agreement, you likely did not realize the math involved:  .10, the lowest hourly percentage for which most attorneys will bill, when applied to a $275.00 hourly rate, equals $27.50.  Ouch.   Read your letter to me?  $27.50. Sent you that email? $27.50.   That time, last week, when you called me to ask about your hearing date? $27.50.  And that is just at that hourly rate.   Applied to the higher hourly rate of attorneys in bigger cities or in bigger firms, those small activities could run $35.00 each ($350.00 per hour), $45.00 each ($450.00 an hour), and so on.  How quickly then, will your retainer be exhausted?

So, how can you prevent this?  What can you do?  My first suggestion, at least if you are not already in an hourly billing arrangement, is to ask your attorney for a flat fee quote, for part or all of your case.   This is not as unusual as it may sound.  Criminal Defense fees are standard flat fee arrangements.  Personal Injury and Probate fees are usually flat fee arrangements as well, though these will be based on a percentage of the recovery or the amount of the assets.  Professionally, I have had my fill of hourly billing arrangements, even in family law cases.  No client wants to see how much I am charging for an email response and I do not want to account for every email I send a client.  In this age of electronic communications, many of emails are sent when I am out of the office, either in Court waiting for a hearing, in a break between depositions, or even out to dinner with my family.  To have to account for them the next day or days after, becomes a burden.

For the attorney, the basis for a flat fee in a family law case, whether the case is a divorce, child custody, child support or paternity case, is the same as the basis for a flat fee in a criminal case.  Each case is going to have the same initial, basic components, and the same, initial procedures.    For my clients, in a Florida family law case, these are the pleading stage, the exchange of mandatory disclosure (financial documents), and the attendance at an initial, family mediation conference.  I know the amount of time each one of those actions takes, both before in preparation, during, and upon its conclusion.  No matter what the dynamics of the case, these three elements will be present.  For the client, the flat fee is somewhat of a relief.  They know that their case, at least up to a point, will cost  “X” amount of dollars.   I say up to a point, because mediation may not settle all of the issues in a case.  Depending on what issues are left over to be tried, then different amounts of time will be needed to bring the case to a conclusion.  But even in those situations, I will try to provide my client with a flat fee quote for their representation beyond the mediation, and through a trial.

But what if you are already in under an hourly billing arrangement, how do you get the most out of your retainer?

1.  Understand The Billing Arrangement.  Recognize that you are under an hourly billing arrangement.  Recently, I had a divorce client, who had received a billing statement tell me, “I didn’t know you billed for emails or phone calls.”  Well, most family lawyers do, as our time I one of the things we are selling.  Whether we spend ten minutes in a phone hearing on your behalf, or ten minutes answering your email, the cost is the same.   Therefore, clients should only contact an attorney, when he or she absolutely needs advice or information.   If you call me to ask if there is anything new in your case, I will be happy to tell you that there is no new update to provide you, but I have to charge you for having had that phone conference.

2.  The Minimum Fraction of Time: Keep in mind what I wrote earlier, that the minimum slot of time for which an attorney will generally bill you, is .10—six minutes or one tenth of an hour.  If you send me five separate, short emails to review, you will spend much more of your retainer than you would have spent, had you sent me one longer email to review.  The same applies to phone calls.  Ten phone calls over two weeks, will cost much more than one longer phone conference, or even an office conference.

3.  The Attorney’s Assistant or Paralegal.  Whenever possible, is to speak to the attorney’s assistant or paralegal, instead of the attorney.   My hourly billable rate in St. Petersburg, Florida, is $275.00 an hour, but I bill my paralegal at $75.00 an hour.  If you want to confirm your hearing date or time, you can get this information from my paralegal at a much better rate, than getting me on the phone.  Now this will not work for anything that requires legal advice or consultation.  In those instances, the paralegal should put you through to the attorney, but you will then get billed for having spoken to both.  However, for any time that you are simply seeking procedural information, contact the paralegal or legal assistant.  He or she can inform you just as easily as the lawyer can, and at much less of a cost.

4.  Follow instructions.  This would seem to be unnecessary to relate, but I have found this is the source of the greatest increase in billable time, and the greatest reduction of a retainer.   It is, though, quite basic, and at the heart of any successful representation.  Comply with your attorney’s instructions.   When your attorney asks you to provide certain documents, provide them.  I have had clients who have refused to provide many of the financial documents necessary for mandatory disclosure (tax returns, bank statements, etc..), on the belief that those records are either not relevant to the case (Florida’s financial disclosure requirements are the same—whether it is a new divorce or a modification of an older custody judgment), or the client believes the records should not be seen by the other party, for the sake of confidentiality.  This leads to additional and unnecessary communications with me or my paralegal, then to letters and motions to compel filed by the other side, and finally to an actual hearing, so that the client can be told by the family law judge, what I have been telling him or her all along—provide the documents.  And at that point, the client has not only run up his or her own legal fees, but now may be subject to paying the other side’s attorney’s fees, for having to take that step.  It is simply a waste of a retainer, and potentially hampers the progress of the case on the actual issues such as alimony, child support or child custody, if the client has to raise more money to continue the representation.

If you follow these steps, you can guarantee you will make your own legal representation more affordable and more effective.  And as a result, you will be more satisfied with your attorney, and more likely to refer a friend with a divorce, time-sharing or other family law case.  So, both you and your lawyer come out ahead.

 

Mark Hanks, Attorney Hanks, P.A.

Your Family Attorney

www.attorneyhanks.com

St. Petersburg, Florida

Copyright 2014

Categories
Divorce Law Domestic Violence Family Law

Representing yourself in Court? Good luck with that.

representing yourself in family courtI have had potential clients ask me, often with a cautious hope, whether their particular type of legal matter, is something that they can handle for themselves.  It is a question one would never ask a physician, an electrician, or an auto mechanic, but one that I believe, is often asked of attorneys.  I tell those individuals that the answer to that question depends on how comfortable they are with understanding and researching the law, presenting evidence, cross-examining witnesses, rebutting legal arguments, and making a persuasive argument to the judge.  Really, though, it is how quickly a person can gain and condense the specialized education and 26 years of experience that I have, into the time that person has to prepare for their hearing.

Editors’ note: see our guide to some of the best US divorce attorneys here.

Recently, I appeared in Hillsborough County Court, in Tampa, for a Small Claims Pretrial Conference before Judge Gabbard.  My client was being sued over a nominal credit card debt, the type of case that over the past five years, has been prosecuted with greater and greater frequency.  Like many different types of court divisions, such as traffic, criminal or even some family divisions, the court calendar was a cattle call.  Of that the cases on that calendar, two individuals had decided to represent themselves.  The first was being sued, on behalf of a debt to a person who had owned the company he had recently purchased.  As the plaintiff was not suing the company, only the former owner, this was a debt for which the individual standing in Court was not responsible, and legally, could never be held responsible.  The plaintiff’s attorney was not about to point this out to the defendant, though he did try to change the subject whenever the judge tried to imply to the defendant—judges cannot give legal advice to either party, that the plaintiff had sued the wrong person.  Without any help or advice from an attorney, the defendant proceeded into a side room of the courtroom, and began discussing the terms of a repayment plan for settling a debt that he did not owe.   The second, unrepresented litigant, was a young woman suing someone on a debt.  In explaining to the judge why she had not gotten service on the defendant, she expressed frustration that the Sheriff’s process server did not do more to serve the defendant, when she was convinced the address she had provided was correct.  Again the judge could not advise this plaintiff, all she could do was reschedule the case for another pretrial conference, and tell the plaintiff to make sure she obtained service on the defendant.

In less than five minutes after their hearings, I told each of these strangers what they needed to know before and for the next time each comes to Court—perhaps to the irritation of the collection agency attorneys gathered in the Court room.  The two pro se litigants were fortunate that I did so, but the point is, neither of these individuals had any business going into Court without an attorney, or without even having consulted an attorney.

While these situations played out in the civil division of the Hillsborough County Court, I have encountered similar situations in St. Petersburg and Clearwater, especially in the context of Family Law cases.  I think in every domestic violence calendar (the hearings in which a Family Law Division Judge rules on entering or dismissing injunctions for the protection against domestic violence (commonly known as, “restraining orders”), that I have attended, at least one unrepresented respondent agreed to an injunction being entered against him.  Similarly, at least one unrepresented petitioner agreed to dismiss her attempt to get an injunction.  In those situations, no testimony is taken, the judge moves onto the next case, and I am not sure the individual parties know exactly what just happened.  And for those injunction cases in which one party has an attorney and the other does not?  There is clearly a mismatch, as the one without the attorney is required to follow the same procedural and evidentiary rules that govern the actual attorney.  As long as the lawyer is on his or her game, the pro se litigant will be kept from testifying to what someone else told him or her (hearsay) and kept from showing the judge what some law enforcement agency wrote about the incident (more hearsay).  From a professional standpoint, this makes for a very effective and satisfying presentation on the part of the attorney, and a very ineffective and even frustrating presentation on the part of the person representing himself or herself.  Why then, do pro se litigants go into that dark night so easily and willingly?

I am sure finances have much to do with it.  But given the number of attorneys out there, it is hard to believe a party cannot find an attorney whose fee requirements, or payment plan, can fit their budget.  And even if one cannot afford to have an attorney there beside them, at least they should consult with one beforehand, to get a better idea of their rights and how to handle the hearing.  I am willing to bet that almost every private and practicing attorney in a county, state or country, will sit down with a potential client, upon request, and advise them of their rights in the area of the attorney’s expertise.  Depending on the attorney and the attorney’s experience, it might cost a consultation fee, but the knowledge the person receives, will be well worth the value—both when walking in the courtroom, and when walking out.

Mark Hanks

Your Family Lawyer

Attorney Hanks, P.A.

www.attorneyhanks.com

Copyright 2014

 

 

Categories
Children Divorce Law

Does Online Divorce Make Divorce Too Easy?

Self-divorce, divorce legal adviceIt seems like an entirely logical conclusion: if ending a marriage is now as simple as visiting a website and spending a few pounds, then divorce is clearly too easy. This criticism – which we face quite regularly – may appear entirely reasonable. It is, however, glib at best and, at its worst, nothing short of irresponsible.

Marital breakdown is unfortunate and, it is certainly fair to say, unpleasant for all concerned. Yes, marriage should be encouraged and those couples that experience difficulties that threaten their union should be provided with assistance. But if a couple cannot resolve their differences, then legislation exists that allows them to divorce for a very good reason: there is little point in keeping a couple that are unhappy together bound to one another. Yes, such a transition can be hard for any children that may be involved, but common sense dictates that this will not be more damaging than growing up in a household within which neither parental figure wishes to reside. That is not to suggest that more should not be done for children of divorce (helping them to adjust and regulating the damage that divorce can cause should be both parents’ and, indeed, society’s main concerns) but that, however perverse it may seem, that their parents’ divorce need not have a long-lasting and adverse effect if managed correctly.

Ultimately, divorce cannot be made to be too easy – it is, with very few exceptions, an extremely difficult and emotionally painful process. This is why so few people (if any) take the decision to end their marriages lightly and will do everything they possibly can to try and save their marriages before deciding to even separate. Following this, many even choose not to divorce for several years. They do so for a variety of reasons from remaining in the matrimonial property for the sake of their children to the need to finalise agreements before legally ending the marriage through to indecisiveness. Having worked at an online divorce company for almost five years know (and having assisted many people during this time) I cannot recall a single client having purchased our services within the first few months of them having separated.

I certainly do not feel that we make divorce too easy and that’s because, in my opinion, you cannot make a divorce too easy. You can provide a customer with a positive service that makes the process and experience more tolerable, but you cannot make it enjoyable.

Categories
Divorce Law

Theres no such thing as a ‘good divorce’

divorce lawSix out of ten parents do not believe that a “good” divorce exists, new survey findings suggest. The findings, from a poll by the counselling charity Relate, found that the majority of parents who have been through a separation do not agree that there is such a thing as a good split.

A similar number of those asked also said that although they had tried to minimise the suffering of children involved, the separation had a negative effect. The survey also highlighted the lengthy process involved in a marital or relationship split, with only four in ten saying that their separation had been complete within a year. 10% of those asked revealed that a separation had taken more than five years to complete.

The chief executive of Relate, Ruth Sunderland, highlighted the potential negative impacts of parental separation on children, suggesting that it can cause school problems, mental and physical health issues, and alcohol misuse. She added that “having strong relationships that go the distance in good times and bad and knowing how to manage the separation process can improve outcomes for everyone.”

The study also found that the Christmas spirit appeared to have had little effect in holding relationships together, with the first Monday of January seeing more than 19,000 calls to Relate. This was a rise of 53% compared with the first working day in December. This day has become known as “Divorce Day”, with many law firms regularly suggesting that they are inundated with such inquiries early in the New Year. This year’s Divorce Day figures were up by half on last year’s total, indicating that the nickname is becoming more and more applicable.

Relate’s findings support a previous study by Netmums, the parenting website, which suggested that divorce and separation has a much more serious effect on children than parents acknowledge or recognise.

Further down the relationship separation spectrum, government plans to remove legal aid in family law cases means that firms are beginning to offer reduced price services.

The mediator Marc Lopatin is one such law professional, having set up a service which he believes can cap legal fees at £1,600 per party. The package can be found online at http://www.lawyersupportedmediaton.com.

 

This article was written by K J Smith Solicitors, specialist family solicitors in Reading, London, Windsor and Henley-on-Thames.

Categories
Divorce Law

Tips on How to Cope with Divorce

People often say that the death of a loved one, the loss of a job, and a divorce are the three most stressful things a person can go through. Though these challenges are never enjoyable, there are ways to cope. This is particularly true when it comes to divorce; it may be the end of something, but it may be the beginning of something else.

The Incidence of Divorce in the United States

It is a common belief that one in two marriages will end in divorce. The actual statistics give some credence to this conception: per the American Psychological Association, approximately 40 to 50 percent of first marriages end in divorce; the number is higher for subsequent marriages.

There are a number of factors that lead to divorce, including the age of the couple when wed and their level of education.

The Future of Divorce

While the high rate of divorce may seem alarming, it doesn’t appear to be waning anytime soon. As reported by the Huffington Post, a survey conducted by the American Academy of Matrimonial Lawyers found that 63 percent of divorce attorneys have seen an increase in prenuptial agreements over the past three years. This can be viewed simply as people proactively protecting their finances, but it can also be ominously viewed as people losing more faith in the sanctity of marriage.

Coping With Divorce

For people who are going through divorce, there are steps that can be taken to help with coping. These include:

Joining a Support Group: The old adage “misery loves company” is true in many situations. But it’s not because people inherently want bad things to happen to others; instead, people inherently want to know that bad things don’t happen to only them. A support group can show you that there are others going through the same situation.

According to Web MD, support groups can go a long way toward helping you heal. They give people a chance to share their feelings, learn from others, and meet people with whom they share commonalities.

Look at it as a New Beginning: Anyone who sees themselves wrapped up in or defined by an ex-spouse will have a difficult time moving on. Instead, looking at divorce as a new beginning and a chance to redefine yourself can help the road seem a little shorter and the load a little lighter.

You may do this by finding a new hobby, exploring a long-dormant interest, redecorating your home, getting a makeover, starting a book club, or doing something you’d never imagined before, such as visiting Europe or taking a singles cruise.

Help Your Children: Divorce can be especially hard for children; they often believe they are to blame. If you have children, remember to help them cope as you cope. You can do this by being understanding of their regressive or rebellious behavior, never asking them to take sides, and never using them as a way to get underneath the skin of your ex-spouse.

Be Open to New Possibilities: Divorce has a way of leaving you sour on the idea of marriage. This is perfectly natural. But keeping the sour taste in your mouth for too long might leave you missing out on something sweet. It’s always a good idea to keep at least part of yourself open to new possibilities; you just never know when something good might come along.

Randall Marbury, a former divorce attorney, is currently a freelance blogger and writer who contributes material on family law issues such as divorce, child custody, mediation and so forth.

Categories
Child Support Children Divorce Law Family Law

How To Be A Good Parent Even After The Divorce

Being a good parent is hard enough on a good day. However, when you’ve just gone through a divorce, making sure that your kids are doing fine is always much harder. You can be a good parent after a divorce though so doesn’t think that this is an unattainable goal.

When you use your parenting skills in a divorce, you help teach your kids to deal with various challenges, helping them to grow into well-adjusted individuals. If you’re going or have gone through a divorce and are trying to figure out how to be a good parent through it all, use these tips.

Put The Child First:

Many times a divorce is going to be messy and complicated. You and your former spouse may hate each other and have trouble even being in the same room. However, this attitude isn’t going to do any favors for your child. You need to make sure that you’re not focusing on yourself throughout the divorce.

Since it can be a fairly lengthy process, talk to your children openly throughout the entire ordeal and ask how they’re doing. They may not be coping so well. Also, when you begin to figure out custody agreements and other important details that are about the kids, get their input. They may not be very happy about the entire situation, but involving them in the process and showing them that you care, is going to help with the transition.

Remember It’s Not About You:

Well, at least not entirely. Obviously, your divorce is going to be a huge part of your life, but you are an adult. You have increased coping mechanisms as well as a mature perspective that your children lack. If you’re starting to fall into the victim mentality, then make the decision to turn this attitude around.

Accept the fact that even in the worst of marriages, you probably made some mistakes as well. When you get to this point, you’re not only helping yourself, you’re also showing your kids that it’s OK to be wrong sometimes and you should always acknowledge your mistakes.

Look At The Positives:

It’s always hard to see anything positive coming from a divorce, but there are many life lessons that you can gain from going through this process. Similarly, your kids can also gain more experience from you. However, you can’t do this if you simply refuse to deal with the problem at hand. As you go throughout the divorce, take each experience as a life lesson.

Many of them are not going to be easy, but if you pay attention, you will come through this experience and be a wiser and stronger person throughout the rest of your life. Make sure that you talk to your kids throughout the process and mention some of the lessons you’ve learned. They can similarly take your lessons and apply them to their lives and future relationships.

Always Be Respectful:

When a divorce with children happens, it’s likely that both parents will have custody or visitation rights. This is going to be hard to deal with, but you can’t let your own feelings get in the way of your children’s happiness. Working through the challenges of successfully communicating with an ex is a goal, which you’re probably not going to get right the first time.

Try to maintain a respectful relationship with your former spouse. This not only sets a good example for your kids, it also helps to make the entire ordeal so much easier

These are a few of the basic ways to make sure that you continue to be a good parent both through and after a divorce. Divorce is difficult for both parents and their children, so make sure that you pay attention to your kids and continue to make them a priority throughout the entire process. Divorce can be a positive or negative factor in a child’s life depending on how you react to it. If you treat it as a learning experience, it can help to grow the relationship that you have with your children.

However, it does take time and effort, so make sure that you’re being a mindful parent throughout the entire process to make the transition easy for your children.

Categories
Divorce Law

Divorce In The Military – Armed Forces Pensions Explained

With the frequent separations and the stresses of life in the UK armed forces, it is no surprise that divorce rates for soldiers are much higher than those of civilian couples (double, in fact). Long deployments in foreign countries are cited as the main reason for many marriage issues and breakdowns, and even when a couple have decided to call it a day, there is still the stress of going through a lengthy divorce – especially if there are children involved. If you’re in the military and are going through a separation, there are several specialist military lawyers out there who can help you, but here is some brief information on what happens when it comes to a frequent issue with military divorce: that of forces pensions.

How Armed Forces Pensions Get Dealt With During Divorce

A pension – including a UK forces pension – is considered as an income stream, and there are several ways of dealing with them if you’re currently going through a divorce:

• Offsetting. One party will be compensated for the loss of the pension by receiving a bigger share of other available assets, such as their house – depending on the value of the pension and assets. Often this leads to a revaluation of the pension in an attempt to increase its value.

• Pension Sharing Order. In this case, part of the pension is taken and paid into a pension for the other spouse, with the rest of the contributions from the military personnel going solely to their pension.

• Pension Attachment Orders. This is where the spouse receives either a lump sum or a portion of the income directly from the pension administrators (once the pension is in payment).

 Getting Advice On Your Armed Forces Pension

If you need professional advice on what to do in terms of your armed forces pension, you will need to provide some specific information to your chosen solicitor or firm of lawyers (ensure that they have experience in military law and pensions in particular before you do this). First of all, you will need to provide the date you joined the pension scheme (armed forces pensions differ depending on when you started), and if you have changed your pension at any time during your career. You’ll also need to provide extra info if the pension is in payment: your CETV (Cash Equivalent Transfer Value) or CEB (Cash Equivalent Benefit). This will need to be requested from the scheme’s administrators, and it could take some time for the information to come through.

Seeking Help While Away From Home

A specialist solicitor with experience with military law will be able to advise you on what is the best option for you and your spouse concerning military pensions as well as any other aspect of divorce. Military divorce lawyers understand that you may be trying to initiate a divorce while in a foreign country, and therefore most will keep in contact with you via phone, email and even webcam if you are unable to meet in person. This can take a lot of the stress away from getting divorced, allowing you to get on with your military duties while the divorce is in progress. You can also get discounted rates from some firms if you are a current serving member of the armed forces.

Tim Bishop is senior partner of Bonallack and Bishop – specialist armed forces divorce solicitors with extensive experience of divorce  involving military pensions for forces personnel serving in the UK and overseas. For expert legal advice visit their specialist websites at http://militarydivorce.co.uk or http://www.armedforcesdivorce.co.uk  or call them on 01722 422300.

Categories
Divorce Law

What We Can Learn From Celebrity Divorces

Celebrity DivorceThese days, it seems as if more and more couples are getting divorced. This is especially true when it comes to celebrities, whose marriages—and break-ups—are often front-page news. While some individuals believe that celebrities serve only as a form of entertainment, others suggest that couples may be able to learn something from their frequent divorces. In fact, celebrities may not only teach us how to keep a marriage stable, but also how to separate in a peaceful and respectful manner.

Communication is Crucial

If celebrities have taught us anything when it comes to maintaining a happy marriage, it is that communication is crucial. Proper communication not only helps individuals teach their partner about their wants and needs, but also assists when it comes to the development of stronger listening skills. Unfortunately, celebrities—and for that matter, non-celebrities—have the habit of demanding their desires, without considering those of their partner. Talking each and every day with one’s husband or wife is a must when it comes to managing expectations and maintaining a long and happy marriage together.

Take Your Time

There is no question that the prospect of getting married can be very exciting—especially when one believes that they are deeply in love with their partner. However, it seems as if many celebrities choose to “jump into” marriage before they have a strong understanding of the traits and personalities of their partner. Most marriage experts agree that men and women should take their time when it comes to getting to know their significant other before choosing to pursue a legal commitment. When it can be difficult to prolong the dating process, it may be crucial when it comes to avoiding divorce in the future.

Know When It’s Over

Despite the best efforts of many celebrities, some marriages simply weren’t made to last. And when a couple agrees that the end is near, they may also benefit by looking to celebrities for some tips and recommendations. While many celebrities do try to put on a good front for the sake of their fans and children, this may not be the best plan when it comes to the health of their family. In fact, the Huffington Post suggests that trying to keep a marriage together simply for the sake of children may actually do more harm than good in the long run.

Lawyers Aren’t All Bad

Finally, celebrity divorces have shown us that—despite their less than stellar reputation—many lawyers are not as bad as they are depicted. In fact, experts agree that having an experienced lawyer who is familiar with family law is crucial when it comes to surviving and thriving during the divorce process. Individuals who have never worked with a lawyer in the past may want to consider speaking with friends and family to identify a skilled and professional legal team. Interviewing a lawyer before making a financial commitment can be useful when it comes to finding the right professional for the job.

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Divorce Law

Who Gets the Diamonds? Divison of Assets

(U.S. Family Law and generally) Going through a divorce can be difficult enough emotionally, and the entire process can be exacerbated by the issues that often accompany the task of dividing assets. Because of this, many couples choose to utilize a prenuptial agreement to ensure that everyone is protected if the marriage is not successful. However, if you do not take this step, you might find yourself dealing with major arguments over specific pieces, especially expensive jewelry. Therefore, it is vital to have an experienced divorce attorney on your side to help you retain the items that mean the most to you.
How are Jewelry Items Divided?
Many women assume that they will automatically get to keep their jewelry when they go through a divorce. After all, the wedding ring was sized to fit their finger, and women typically care more about diamonds and other precious gems than men do. Because of this, it is possible that you might not take enough steps to protect yourself before all of your joint assets begin being divided.

It is important to remember that jewelry can have a very high monetary value, and this could cause your ex to request it as part of their end of the divorce settlement. In some cases, you might even find yourself having to make the difficult choice between a piece of jewelry and another item that you want to keep. Fortunately, a lawyer can help you debate your ex’s request for your jewelry, and they also have a firm understanding of how to make successful counter offers.
What about Family Heirlooms?
In a fully civilized society, it would be understood that family heirlooms should stay with the applicable party. For example, if you have been wearing a ring that has been part of your ex’s family for several generations, you should be prepared to give it back. However, many of the societal pleasantries that most people adhere to on a daily basis are thrown out the window during a contentious divorce. Therefore, you should never assume that you will simply receive all of your family heirlooms without needing to fight for them.
Because of this, it will be important to build a case based around the history of the piece and its sentimental value. After all, the other party will not have the same history with the piece, and this will make it less emotionally valuable to them. Sadly, this could end up being used against you in order to obtain other items unless you utilize a skilled lawyer to help you present your case.
In many cases, couples divide their assets in half, and this can cause complications due to the value of jewelry. In fact, if an item is not an heirloom, it might make more sense to let your ex keep it in favor of receiving a larger cash settlement. For example, if you are debating over a diamond ring, you can easily get something similar at a reduced price by shopping at an online diamond retailer such as www.superjeweler.com. As long as you keep this information to yourself, you might be able to end up with a new ring and some extra cash. However, if you are determined to keep all of your jewelry, you should also be prepared to give up some other items to keep the division of assets fair.
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Divorce Law

Bankruptcy: Watch out for the Marital Adjustment Deduction

divorce and bankruptcyWhen a person who is married decides to file for bankruptcy, the law permits him or her to do so alone, without requiring both spouses to file.  However, the non-filing spouse’s finances do play part in the filing spouse’s bankruptcy case.  The “means test,” including the “marital adjustment deduction” will be evaluated to determine whether or not the filing spouse qualifies for a Chapter 7 bankruptcy, or to determine the amount the filing spouse will have to pay unsecured creditors in a Chapter 13 bankruptcy.

The Means Test

Even though you may feel that the only way out of your dire financial situation is to file for bankruptcy, a Westchester county bankruptcy lawyer points out that under the strict rules of the bankruptcy code, you may not qualify for a Chapter 7 bankruptcy filing.  In a Chapter 7 bankruptcy,  the debtor essentially tells the court that he or she is unable to pay back any part of the debt owed to creditors.  In order to qualify, you must pass a “means test,” meaning that your disposable income must be below a certain level.  If you do not pass the means test, then under bankruptcy law you are presumed able to pay back at least a minimum amount of your debt, and you will not be permitted to proceed with a Chapter 7 bankruptcy.  As part of the means test the bankruptcy court will look at your last 6 months of income as well as your expenses.  Thus, even if you have a high income, if your expenses are also high, your may still qualify for a Chapter 7 bankruptcy.

If you are married, but separated and living in separate households, the income of your non-filing spouse will not be taken into consideration for the means test. However, if you are married, then your spouse’s income will be taken into consideration for the means test.  This could have a significant impact on the filing spouses’ Chapter 7 petition.  If the non-filing spouse’s income is too high, then you may not qualify for a Chapter 7 bankruptcy.  In this is so then the “marital adjustment deduction” may help.

The Marital Adjustment Deduction

As part of the means test, you are permitted to deduct expenses from your income.  The “Marital Adjustment Deduction” allows you to deduct any expenses that your spouse pays that are not normal household expenses.  These “other” expenses are known as “marital deduction expenses.”  Examples of marital deduction expenses can include credit card payments for accounts that are only in your spouses’ name, child support payment for your spouse’s child, business expenses, student loan payments, and payroll deductions.  The net result of using the marital adjustment deduction is that if significant, it may offset at least some of your spouse’s income that you had to include in the means test.  Thus, you may still be able to qualify for a Chapter 7 bankruptcy even though your spouse’s income is relatively high.

Alternative to Chapter 7

If after applying the marital adjustment deduction you still do not qualify for a Chapter 7 bankruptcy, you may be permitted to file under Chapter 13. While all of your debt will not be discharged, the total amount you repay your creditors will likely be significantly reduced and you will have 3-5 years to make the payments.   However, you will still have to disclose your spouse’s income and expenses, which may affect the total amount you have to repay your creditors.

The importance of Full Disclosure

Ultimately, both your complete financial picture and that of your spouse will likely be closely reviewed by the bankruptcy court to determine how the law will allow you to proceed with your bankruptcy.  Thus, it is important to be prepared with evidence backing up all claims regarding income and expenses, or risk having your case dismissed.  An even worse result would be having the bankruptcy court determine that you have committed or attempted to commit fraud.

Do you think it is fair that a non-filing spouse’s finances are considered when a married person files for bankruptcy?  What if throughout the marriage the couple’s finances remained largely separate?  Does this rule encourage spouses to legally separate or “pretend” to separate?

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Child Custody Child Support Divorce Law Family Law Finance Marriage Separation Law

How Military Divorce Differs from Regular Divorce

Military divorces are much like any other divorce. Two people decide they no longer want to be married, and go through the process of separating property, assets and determining child custody issues. However, the way these concerns are addressed, and the way things are separated between the two parties, requires a consideration of the military member’s lifestyle and benefits. Understanding how survivor benefits and military pensions are divided up, and how custody of children is determined, is important for both spouses considering divorce.

Child Custody

Many military marriages involve an active duty spouse and a civilian spouse. The lifestyle of these families adapts to the military world, with active duty personnel moving regularly for various deployments, and with the military spouse frequently away from home. Families that fit this description should be aware that the courts will rarely grant full custody to the active duty spouse.

When determining child custody, the courts always look out for the best interests of the child. It is understood that, while the active duty spouse is doing much for his or her country, the lifestyle is ill suited for raising children. Military families should assume that child custody will go to the non-active spouse, and this will likely include child support payments.

Division of Military Pensions

Active duty service members are entitled to a pension after 20 years of service. The courts answer the question how to divide up this pension in the case of divorce. Most military couples are aware that the non-military spouse is entitled to half of the pension after 10 years of marriage. However, not all are aware that this division is negotiable.

The couple can come to an agreement on the division of the pension in their own way. This includes if the marriage has been shorter than the standard 10 years, and it includes the possibility of a payout of less than 50 percent of the pension after the 10-year mark.

The 10-year and 50 percent standards are simply guidelines for the court to go on. The arguments presented by both divorce attorneys and the decision of the court can produce a number of different results. Each spouse may wind up with more, or less, than he or she was aiming for.

It should also be noted that only after ten years of marriage can the finance center pay the awarded portion of the pension to the spouse. If the non-military spouse wins some of the pension, but the marriage did not last for at least ten years, it is the responsibility of the retiree to make the payments to the ex-spouse.

Survivor Benefits

Some spouses make the mistake of assuming that the Survivor’s Benefit Plan (SBP) – the payout that happens upon the death of the military spouse – will still go them in the event of death. While the SBP can be awarded to the divorced spouse during the divorce proceedings, this is certainly not guaranteed.

If the ex-spouse is not awarded the SBP, then he or she will stop receiving pension payments in the event that the military member dies. This is something to remain aware of during divorce negotiations.

Military Divorce Lawyer

Spouses considering a military divorce should seek the help of an experienced military divorce lawyer. This will help ensure the best possible results from the divorce.

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Civil partnerships Cohabitation Law Divorce Law Family Law Marriage Pre-nuptial Agreements Property issues Separation Law

Family Law Property Issues in Australia

(Victorian & Australian Law)

In recent times, the jurisdiction of property disputes in Family Law has broadened. Traditionally, property was only divisible between married or divorced couples. De-facto and same sex partners are now able to apply for a property settlement, though under different law. In the absence of agreement between the parties, an application for the settlement of a property dispute is made to the court, to be decided on the basis of need.

The settlement reached becomes legally binding and enforceable by the courts. Here’s a rough guide to what usually happens in these situations…

Applications

Parties can make a property settlement by agreement or, if agreement cannot be reached, make an application to the court for a property settlement. Applications for the division of property after divorce can be made to the Family Court or to the Federal Magistrates Court where a property dispute is worth less than $700,000.

Only parties who are or were married can make an application for a property settlement under the Family Law Act 1975 (Cth). In the case of divorce, an application must be made within 12 months of receiving the decree absolute. De-facto and same sex partners can make an application under the Property Law Act 1958 (Vic) in the Supreme Court, County Court or Magistrates’ Court.

Once an application is made, the parties will be asked to attend a case conference, with the aim of settling the property dispute by agreement before it goes to court. Present at this conference will be the parties, any family lawyer involved and a court registrar. If this conference is unsuccessful, the parties will go to court.

Property disputes in de-facto and same sex relationships (domestic relationships) are dealt with under the Property Law Act 1958 (Vic). A domestic relationship is a relationship between two people (regardless of gender) who live together as a couple on a domestic basis but are not married. The domestic relationship must have existed for at least two years for an application for a property dispute to be made under Part 9 of the Property Law Act . If there are exceptional circumstances, for example children being born out of the relationship, this two-year period can be waived. The relationship must have ended after 8 November 2001 for Part 9 to apply.

Property

The type of property divisible in a property settlement includes assets, cash, real estate, investments, insurance policies and superannuation. Debts are also taken into account. In a domestic relationship, as governed by the Property Law Act , superannuation and retirement benefits are not included in a property settlement. In making an order for property settlement, the court calculates the total pool of assets of the parties.

The division of these assets is based on both contributions made by each of the parties to the asset pool and future needs. The contributions of the parties include non-financial contributions, which means a homemaker will not be disadvantaged in this assessment. Future needs takes into account who is responsible for the daily care of the children, earning capacity, age, health and the financial circumstances of any new relationship. The aim is to distribute the property fairly between the two parties.

If you believe your partner is going to dispose of assets before the total pool of assets is calculated you can obtain an injunction to stop the sale taking place. Bank accounts and proceeds from the sale of any assets that has already taken place can also be frozen.

Spousal Maintenance

A party can apply for ongoing spousal maintenance if they can prove they are unable to support themselves. This application must be made within 12 months of divorce. An application for spousal maintenance is often included with an application for property settlement so that all financial issues are dealt with at once.

Spousal maintenance cannot be applied for where a domestic relationship exists.

Enforcement

If an agreement is reached between the parties, they can apply to the court for consent orders. This will make the agreement enforceable by the courts in case of dispute. Consent orders, once made, are final. A party must prove fraud, impracticality or other exceptional circumstances if they wish the consent orders to be set aside or varied.

If a party is not complying with the orders made, an application can be made to the court for enforcement. In this application, the party applying must set out exactly what the problem is. The court will then decide whether an order is needed to enforce the existing order.

A family law property settlement is an important process to go through after the breakdown of a marriage or domestic relationship. A property dispute can be settled by agreement between the parties or resolved by the court. Each case is unique and will be considered by the court according to its own circumstances. The court will not consider who is at fault in the breakdown of a relationship. Rather, it will be resolved on the basis of fairness and need.

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Children Divorce Law

Literature on Divorce for Older Children

divorce lawApproximately half of marriages, in the United States, end in divorce.  While not every married couple has children, it can be assumed that a large number of children are faced with their parents’ divorce each year.  When parents decide to divorce it is their responsibility, for the well-being of their child, to discuss the divorce with their child.  Many parents seek out additional resources, such as books, to make their discussion a bit easier or to answer questions that may be hard to answer on their own.  There is a plethora of books for younger children, specifically between the ages of 4 – 9, that are specifically written about divorce.  Many of the books are picture books with colorful illustrations concentrating on using simple concepts and a discussion of emotions.  Aside from “self-help” type of books, there are fewer books on divorce available for pre-teen and adolescent children.  While the needs of an older child are different from young children, a book addressing divorce can be helpful to an older reader.

Stereotypically, girls are most often classified as “readers”.  Much of the pre-teen and adolescent fiction and non-fiction literature discussing divorce has female protagonists or themes aimed at young women.  Parents of pre-teen and adolescent boys may need to search a bit more, but there are books with adolescent boys as the protagonists dealing with family issues like divorce.

Homesick, a 2012 release by Kate Klise, is a novel with a young male protagonist, appropriate for readers between 9 and 12 years old.  The main character, Benny, lives with his parents who have separated.  His mother has left the family and his father has hoarding issues.  Many readers may connect with Benny and the pressure and need to be responsible in his crumbling home life.  Reflected in a Kirkus Review, “Benny gets a job at the local radio station to scrape together money to pay the phone bill so he can stay in touch with his mother. She’s planning to get settled and return for him at the end of the school year, but Benny’s dad is spiraling downward fast.”

While Benny’s scenario may seem “too big to be true”, children of divorced parents may relate to Benny’s situation and his feelings.  Sometimes a story, bigger than their own, might make a child feel better about their own situation.

Children, of any age, may benefit from tools, such as literature, when dealing with divorce in their family.  Parents and children can connect through literature and gain a better understanding about divorce.  Literature can remind children, of any age, that divorce is not their fault, not their responsibility, and despite the situation, a parent’s love still remains before, during and after the divorce.

For more information about divorce please visit the website of Charles Ullman, a Cary, NC Divorce Lawyer at divorcelawnc.com.

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Adoption Child Custody Child Support Children Civil partnerships Cohabitation Law Divorce Law Family Law Marriage Property issues Separation Law

Florida Same Sex Separations and Collaborative Family Law

Though the U.S. Supreme Court recently struck down portions of the federal Defense of Marriage Act (“DOMA”), state DOMAs were not affected by the ruling.  This means that same sex couples cannot get legally married in states, such as Florida, that enacted a DOMA.

This also means that gay and lesbian couples cannot get divorced in many DOMA states and oftentimes do not have any legal remedy to separate.  If the domestic partners did not adopt each other’s children, even if both partners had been considered the parents of the children, then child custody, visitation, and child support laws usually will not apply.  Equitable distribution laws (laws related to division of marital assets and debts) do not apply, so separating property and liabilities can get real messy, real quick.  Further, alimony and spousal maintenance laws do not apply, so a partner who spent years homemaking and taking care of children may suddenly become destitute.  So what are separating same sex couples to do?

Domestic partners who are dissolving their relationship should seriously consider entering into a collaborative family law process.

Collaborative family law is a form of private dispute resolution that allows clients to enter into agreements and achieve results that could never be attained through a court process. Each client retains a separate attorney who advises and counsels the client and helps in the negotiating process.  A neutral facilitator, who is a mental health professional or mediator, helps the clients focus on their interests, such as the welfare of clients’ children, continued relationships with each other’s family members, or financial stability.  If there are substantial assets or debts or a business, a neutral accountant or financial planner will be brought in to educate the parties in finances, help fairly and cost-effectively divide property and liabilities, and, if requested, develop a budget for the clients’ future.

As you can see, collaborative family law is a holistic process that takes into account not only the legal, but also the emotional and financial needs of the clients.

The crux of collaborative family law is that the clients agree at the beginning that they will not seek to resolve their dispute through court battles, but rather they will come to a mutually agreeable settlement through this private process.  The clients, and their attorneys, enter into a participation agreement which disqualifies the attorneys from representing the clients in any contested court action.  This provides a safe space in collaborative meetings because each client knows that the other client’s attorney is not conducting opposition research and is committed solely to helping the clients reach a mutually acceptable agreement.  This allows clients to feel more comfortable offering and listening to potential solutions.

In truth, the disqualification clause has much more of an effect on heterosexual couples who are getting divorced, rather than homosexual couples who are separating.  This is because, as stated above, most DOMA state courts just do not have remedies that would properly address the clients’ concerns, and so attempts to fight it out in court will oftentimes be dismissed.

If you are experiencing a same sex separation, make sure to speak with an attorney who offers collaborative family law, and check to see whether the attorney has received collaborative law training that meets at least the minimum Basic Training standards of the International Academy of Collaborative Professionals.

If you have questions regarding a Tampa Bay collaborative family law process, or you want to learn more about your Florida family law rights, schedule a consultation with The Law Firm of Adam B. Cordover, P.A., at (813) 443-0615 or fill out our contact form.

Adam B. Cordover currently serves as Research Chair of the Collaborative Family Law Council of Florida and Vice President of the Collaborative Divorce Institute of Tampa Bay.  Adam successfully spearheaded an effort of the Thirteenth Judicial Circuit of Florida to draft an administrative order safeguarding the principles of collaborative family law (just the fourth such administrative order in Florida) and has completed over 40 hours of basic and advanced collaborative family law continuing legal education credit.

 

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Divorce Law

Cutting The Cost Of Divorce

As legal aid all but disappears in England and Wales, do-it-yourself divorces and fixed-fee deals are becoming much more common, since mounting legal costs often add to the stress of a situation when two people decide to go their separate ways.

In April this year, legal aid for the 120,000 couples who divorce in a typical year has more or less disappeared in England and Wales, except in cases of proven domestic violence.  Some commentators are predicting a big increase in do-it yourself divorces and the changes have prompted the arrival of a raft of new fixed-fee legal deals that keep legal bills to a minimum.

There are several organisations that offer do-it-yourself deals, but it is important to remember that these services only work for uncontested actions. In an uncontested action, a divorce petition is relatively straightforward to draft. One side, the petitioner, cites grounds for divorce, such as two years’ separation, unreasonable behaviour, or adultery. Then, once the court fees are paid, a divorce is granted.

However if there are custody issues, significant assets including property, these quick fix services are probably not the best path to choose. Divorcing couples should remember that they have to budget for the unavoidable £385 court fees on top of whatever they pay to a legal provider.

About two-thirds of divorces involve a financial order to share assets, such as property and pensions. The split is usually agreed between the former partners or their lawyers. Relatively few go to a full court hearing where a judge imposes a settlement. But where they do, the costs can be very high: with bills for £15,000 for each side not being uncommon.

A number of law firms, such as Close Thornton Solicitors in Darlington, have launched fixed-fee deals.  A straight-forward divorce costs £650 +VAT for the petitioner and £125 + VAT for the respondent

Categories
Divorce Law Family Law Marriage

The true cost of divorce in the UK

It is difficult to work out how to approach an article about the true cost of divorce in the UK.

For example, it would be possible to spend time discussing the emotional cost on both parties (as well as other people who might be affected, including any children), with this emotional cost generally increasing in line with the breakdown in trust and communication that is often associated with drawn-out legal disputes relating to a divorce.

It would also be possible to consider this from the perspective of the financial damage that is caused to a couple when they decide to separate, resulting in them needing to spread their assets and income much more widely in order to pay for 2 houses and separate lifestyles.

Each party to a divorce as also likely to have a view about how those assets and income that they consider to be their “own” ending up being shared with the other person, thus resulting in what they perceive to be an unfair cost. For example, any money from a recent inheritance might need to be shared with their spouse as well as part of their future income even after a divorce has been finalised.

Whilst all of the above issues are very important ones to examine when considering the true costs of a divorce, the aim of this article is to focus purely on the actual costs associated with the divorce process itself as I feel that these are often very unclear when the divorce process is started.

Part of the problem with addressing the issue of divorce costs is that in some ways this is similar to trying to establish the length of a piece of string as it is possible to spend anywhere from hundreds of pounds to tens of thousands of pounds on a divorce. To understand this, I will try to examine some typical scenarios for managing the divorce process:

1. DIY divorce

Whilst the removal of most forms of legal aid has essentially ended the possibility of a government-funded divorce, it is still possible to run the divorce process yourself. This will mean that the only costs associated with the divorce process are the court fee (which went up in July 2013) of £410, that now covers the full divorce process but that needs to be paid at the start of the process, and some minimal photocopying/postage costs. Whilst it is always advisable to consider whether independent legal advice would be appropriate, especially when there are children and complicated financial issues to discuss, there is no reason why someone who is comfortable with filling in forms and reading guidance notes should not consider a DIY divorce as an option if saving money is the priority and a very helpful government website can be found at https://www.gov.uk/divorce/overview

2. Online divorce websites

In recent years there has been an explosion in the number of companies offering to run the admin side of the divorce process via online websites, with some of these offering a divorce from as little as £37, although you will of course need to pay the £410 court fee and, if the divorce process does not go through as smoothly as hoped, you will then need to decide who to turn to for advice. Whilst I have had a number of clients who have used these websites with apparent success, this is only once the divorce process itself has been agreed in mediation, and it is important to consider whether you want to put something as important as a divorce in the hands of a faceless website rather than choosing to undertake a DIY divorce or instructing a solicitor to manage the divorce for you.

3. Fixed fee divorces

There has also been a growth in recent years in fixed fee divorces being offered by solicitors and it is likely that the competition in this area will become even fiercer in the coming years, thus leading to further reductions n the fixed fees. The advantage of these fixed fee arrangements is that you have some level of transparency with the fees involved but you will need to make sure that the £410 court fee has been included and check how the costs are likely to change if the divorce process is less straightforward than hoped e.g. if the other party defends the divorce or does not engage in the divorce process. If you choose carefully, then you should be able to find a suitable solicitor to process a straightforward divorce for somewhere between £1,000 and £1,500 including court fees.

4. Open ended divorce fees

When you instruct a solicitor to run the divorce process that is not on a fixed fee basis,  it is vitally important that you ask for clear guidance about costs and that you ask to be updated if it looks likely that the initial costs estimate will be exceeded. Failing to do this will leave you open to running up bills of thousands of pounds as your solicitor writes letters, makes phone calls and runs up additional costs at an alarmingly high rate, especially if there is any suggestion that the other party (0r their solicitor) is not in agreement with running the divorce process the way that your solicitor wants to run it. Ultimately, this could result in a contested divorce that costs each party tens of thousands of pounds,

Whilst the general examples above give a flavour of the choices that you have when considering a divorce and their respective costs, the big problem here is that all of these choices are designed purely to result in a divorce, thus meaning that there are often issues relating to the caring of any children that are unresolved.

Also, it needs to be understood that, unless a separate application is made for finances to be considered, you will not have resolved any issues relating to the finances, such as the ownership of the family home, the division of pensions and whether or not there should be future maintenance payments from one party to the other. Failing to address these issues at the time of divorce means that the window for one party to apply for a finance order remains open for many years and can lead to punishing legal bills in the future, not to mention the fact that it is likely that one or both parties will be in a financially vulnerable position without a court order to enforce any financial agreements that might have been reached either explicitly or implicitly.

It is therefore vitally important that you ensure that the finances (and children’s arrangements) are carefully considered during the divorce process and it is here that the true costs of divorce start to emerge. It is extremely difficult for the parties themselves to properly address the finances as the laws relating to finances are complex and there are many pitfalls to be avoided, with it being likely that the end result will either be one that is highly favourable to one party or one that damages the finances of both parties. It is also extremely difficult, if not impossible, for these issues to be dealt with by any online website or by any fixed fee package, as each situation will be unique, leaving just the option of open ended fees with solicitors and it is here where the true costs of divorce will become apparent. Some fortunate people who choose their solicitor carefully may receive all the advice and assistance that they need for a few thousand pounds each but there is a risk that the bills will exceed £10,000 per person and potentially go a lot higher, especially if any court intervention is required.

Of course, this is where family mediation can and should play its role. It should be possible for a suitably trained and experienced mediator to guide both parties through the divorce process (but with the parties completing their own paperwork or using one of the other options above once the divorce process has been agreed in mediation) and to, in the vast majority of cases, assist them to reach agreements about the children’s arrangements and the proposals for a full financial settlement, at a fraction of the cost that would be incurred between solicitors. It is likely that both parties will benefit from receiving some independent legal advice in parallel with the divorce process, as well as there being a need for any mediation proposals to be turned into legally binding agreements (or court orders) by a solicitor, but these legal costs should be comparatively very small.

Whilst each case is going to be different, from my experience it should be possible for all of the issues to be addressed properly within the mediation process for somewhere between £500 t0 £1,500 per person, with then just the court fees and some specific legal costs to add to this, giving a total cost of somewhere between £1,000 and £2,500 per person for the full process (but with there being additional costs involved if financial advisers or other experts are instructed during the process). As a mediator, I am aware that these costs are still significant for most people but I am also very aware of how much money will have been saved by both parties if they are able to reach agreements via the mediation process. I hope that this article goes some way to help others to become aware of the potential costs of divorce and to then enable them to make informed decisions about how to approach a possible divorce in the future without suffering from large legal bills or other unexpected and unnecessary costs.

Thank you for taking the time to read this post and I look forward to reading your comments.

 

Euan Davidson

Family mediator

Godalming Family Mediation

www.godalmingfamilymediation.co.uk

Categories
Divorce Law Family Law

5 Things to Consider When Choosing a Divorce Attorney

(US family/divorce law & general tips) Most of us would agree that “things” have gone wrong long before you realize you must look for and pick a divorce attorney. Whatever is wrong with your marriage did not sneak up on you – it has been in the works for years. But you probably did not get much warning before the emergency alarm bells started to ring in your head. You may have discovered your spouse was cheating on you. Or one of you may have moved out of the marital home.  The most clear-cut emergency alarm bell may have taken the form of a process server appearing at your door.

Whatever the case, you fell into a situation where you had to pick a divorce attorney really fast.  That means you must make one of the most expensive, critical, and life-changing purchases in your entire life, and you must do it really fast. That is not the best of combinations to face. But if you follow this quick list you will find the decision a bit easier:

1.  You have 20 days to respond to the petition if you have been served. 

This timeline could vary in different states. Normally the time to respond is on the court summons.  What many people do not initially know is that a response can be put together and filed by an attorney in one day. Most responses are not a big deal. They usually consist of boilerplate provisions and are easy to bang out. So that means you have more time to pick an attorney than you think.  Don’t rush out and hire an attorney in one day. This is way too important a decision to make in a dire rush.

2. Do not call around for pricing and make a decision solely based on price.

There is an old saying: “statistics don’t lie, but liars use statistics.”  For this discussion we can modify that saying: “prices don’t lie, but liars use prices.” Understanding divorce attorney prices can be very difficult because most of the tactics regarding pricing will always be invisible. For example, you may find out the attorney that bills $100/hour is more expensive than the attorney with a billing rate of $300/hour. It all comes down to billing practices in that particular law office. One attorney might take four hours to draft your initial documents where another attorney takes one hour.  Another example is where attorneys quote their initial retainer. An unusually low retainer might be “burned up” in the first two weeks of the case.  A good attorney quotes a retainer that will cover a significant part of the case. That retainer should have some chance of covering your case through the end of mediation.  Most cases end shortly after mediation. So a realistic retainer should be designed to possibly reach that goal.

3. Carefully examine the appearance of the attorney’s office.

Not all attorneys have an office in Trump Towers. But any office should be reasonably neat and organized in appearance. Are there stacks of papers all over the office? Does the office equipment appear to be held together with duct tape? Does the attorney have personal pictures or other personal items in the office that show a long-term presence?   A disorganized office usually means a disorganized case.  Take the hint when the attorney’s office is a complete disaster.

4. Is your prospective attorney willing to give real answers to real questions in the first meeting?

A good attorney never uses mystery and fact spinning to get your business. They are proud to show off their expertise. Giving good answers to potential clients is a way of showing there is more expertise available in the same person. Try not to waste the attorney’s time – but you should have some expectation of good answers for your initial questions. Attorneys that do nothing but sell themselves are a red flag.

5. Did the attorney promise specific results?

If they did promise results, this is a big red flag.  Most state Bar associations prohibit promises of specific results. And the fact is that judges make decisions, not attorneys.  Besides, wouldn’t it be silly for the attorneys on both sides to promise completely opposite results? How could they ever both be right?  A good attorney will tell you the chances of success and then explain several possible scenarios based on your individual facts.

A good attorney will tell it like it is. Their pricing is transparent, ethical, and oriented toward the benefit of the client. They will show you their best in the initial interview and then continue to prove they are the correct pick by conducting an organized, cost-efficient case. Never make your decision on a moment’s notice. For a life-changing event, you must carefully choose who will best help you achieve your goals.  Make sure you follow these easy steps and you will soon be on your way to a new life and continued happiness.

Categories
Divorce Law

Financial Settlements on Divorce

Family lawyers rejoiced recently as a landmark decision from the Supreme Court gave justification to piece the corporate veil in relation to financial settlements on divorce.

The case arised after a divorce case between oil trader and his wife took place after a 20-year marriage ended. The assets of the marriage totaled a huge £37.5 million and the wife was rewarded almost half at £17.5 million at the High Court in 2011. The husband in the case, a successful business owner, was ordered to transfer a number of properties from his business over to his ex-wife as part of the divorce settlement. However the properties belonged to his companies and were not his outright therefore refused to transfer them and appealed against the Order.

The appeal focused on whether the Court had the power to transfer 7 of the properties over to the wife with the argument that they belonged to his companies and did not in fact belong to him. The High Court Judge overturned on the basis of the Court appeal after agreeing that the properties did belong to the companies and not to the husband, even though the husband owned almost 100% of the business of which the properties belonged to.

The Court of Appeal went further to assess whether the treating of assets of companies owned by one party to a marriage should be available for distribution between the parties during a divorce settlement.

One judge said,  “why should family justice be regarded as different from any other sort of justice…”

Family Lawyers across the country such as leading Canterbury solicitors Whitehead Monckton and EMD family solicitors in Kent have eagerly anticipated the Supreme Courts decision and in a complete U-turn, it came to light that the 7 properties in question were bought in the companies name but were in fact purchased using the husband’s personal money. Therefore orders could be made against them in Family Court. This Landmark decision will be a huge consolation to future separating spouses who struggle to obtain fair financial agreements during a divorce settlement when the majority of the assets are owned within company structures.

 

Whitehead Monckton is one of the leading law firms in Kent can offer professional guidance and advice on all divorce and separation matters and provide expert divorce solicitors in Canterbury with a wealth of financial experience behind them. Visit the Whitehead Monckton website to find out more about their expertise or visit them in one of their three locations in Kent: Canterbury, Maidstone and Tenterden.

 

(Please note that the case discussed is not a Whitehead Monckton or EMD Law case.)