Billionaire Hamm’s is one of the biggest divorce settlements in history, but is it big enough?

American entrepreneur Harold Hamm, best known for his position as CEO of Continental Resources, has been ordered to pay his ex-wife, Sue Ann Hamm, $995.5 million in what has been referred to as one of the biggest divorce settlements in history. Although an enormous figure to most, it is only a fraction of Mr Hamm’s $14 billion empire and Sue Ann plans to appeal the decision on the grounds that it is inequitable. For this reason, the ruling invites an intriguing question – is the Oklahoma County Court’s decision reasonable compared to the conclusion that a court in England and Wales would have reached?

Oklahoma is an equitable distribution state when it comes to the division of property on divorce. This means that any settlement must be just and reasonable. In order to achieve this, a judge must take into consideration the contributions of each party during the marriage, as well as deciding what each ex-spouse needs in order to move forward following the separation. Also to be considered is the standard of living enjoyed by the ex-couple whilst they were married and any factors that are clearly relevant – such as a spouse’s ability to pay. As the 24th richest man in the United States, it is fair to assume that Mr Hamm wouldn’t exactly struggle to make payments to his ex-wife. One would also be forgiven for suspecting that the ex-couple enjoyed a rather comfortable standard of living.

Whilst equity is central to property division in Oklahoma, its synonym fairness is the main consideration of judges making financial orders following marriage breakdowns in the UK. But what exactly is fair? And would Lord Nicholl’s famous ‘yardstick of equality’, together with the S25 factors of the Matrimonial Causes Act 1973, place Sue Ann Hamm in a better position? Let’s consider the facts. Harold 68 and Sue Ann 57 were married from 1988 until Sue Ann filed for divorce in 2012. Although Harold made mention of the fact that the couple had been separated since 2005, in England and Wales a marriage of 17 years could be considered long for the purposes of financial distribution. The affair that Sue Ann alleged Harold to have had would be irrelevant in an English court, as only conduct with the ‘gasp factor’ would be taken into account. The ex-couple have two children together: Jane, 23, and Hillary, 20. Although a UK court would investigate their financial needs together with their earning capacities, the reality is that this would not be a huge consideration due to the fact that they are both over the age of minority.

In Oklahoma, a significant factor for consideration was how Mr Hamm acquired his fortune. Just your ‘regular’ multi-millionaire when he married Sue Ann, Harry went onto purchase one million acres of land leases, which saw Continental Resources become a major oil producer and in turn propelled him into billionaire’s territory. Oklahoma law states that money earned during a marriage can form part of a divorce settlement if made through skill, as opposed to ‘luck’, or a change in the economy in which case it cannot. Mr Hamm’s argument that he had ‘stumbled across’ his additional wealth fell short when Judge Haralson stated that Harold’s skill, effort and leadership had been the driving force behind the success of Continental Resources.

Although Mr Hamm’s argument was unsuccessful, looking at how wealth has been generated in this way would be completely alien in the UK. Whether by luck or skill, this amount of wealth would fall into the pot for consideration.

A consideration of the UK court would be the needs, obligations and responsibilities of both Harold and Sue Ann. Due to the extreme wealth of the couple, this factor is likely to be reviewed in conjunction with the standard of living enjoyed by the parties before the breakdown of the marriage. This is because the ‘needs’ of a party are extremely subjective and will therefore be very different depending on the lifestyle a party has become accustomed to. A UK court would be looking to ensure that Sue Ann would be able to continue living comfortably; however, the difficulty arises when trying to decide how much money she will need to do this. Realistically, the almost $1 billion that she is set to receive in Oklahoma would allow her to have a life of luxury beyond anyone’s wildest dreams.

Also relevant is the fact that Sue Ann Hamm was not a lady of leisure throughout her marriage. She was a lawyer in Harold’s company when the couple married, playing a significant role negotiating the company’s land deals. Her work could be found to be a significant contribution to the family, alongside Harold’s contributions. Also, if she stopped working to take care of the children (which is currently unreported), she could have an argument to be compensated for the loss of her career.

Taking all of the above factors into account, it appears that there could be a strong argument in the UK in favour of Sue Ann receiving an equal distribution. After all, she had a long marriage and contributed to the family’s welfare. In addition, Harold certainly has enough money to fund an equal split. However, the ruling of Cowan v Cowan[1] throws a significant curve ball into the equation. In this case, the Court of Appeal held that a stellar contribution by one spouse is enough to justify a departure from the yardstick of equality. Charman v Charman[2] seems to confirm that Harold’s $14 billion business could be viewed as stellar, hence creating a shift in his favour.

So what would all this mean for Sue Ann here in England? All the factors certainly point to potentially more than the 1/14th share she has been awarded. Some might say it’s no wonder she is trying her luck on appeal!

[1] [2001] 2 FCR 332 [2] [2007] EWCA Civ 503

The Legal Aid Reforms – What do they mean for Family Law?

In basic terms, legal aid helps people gain legal advice or representation when they cannot afford it independently. The legal aid system here in the UK is said to be one of the most expensive in the world, spending £2 billion per year. With the recession and cuts being made across most sectors, it is not surprising that there have been reforms and further changes proposed to legal aid. These changes are being put in place as a bid to try and save £350 million per year; however they have been the source of much controversy and even recently sparked protests. But what does all this mean for families who are trying to use legal aid? Gordon Dean solicitors in Norwich explain in more detail…

Changes to Family Legal Aid                    

In April of this year some alterations were made to legal aid that reduced the scope of the funding, legal aid pertaining to family law was significantly changed. Private family law issues such as custody battles and divorce are no longer eligible for legal aid. The exception being that such private family cases can gain access to legal aid if there is history of child or domestic abuse. Under such circumstances there must be evidence of such abuse to qualify for legal aid. In this situation, legal aid is only provided for the victim of domestic abuse and not the perpetrator. Of course, if legal action is needed to protect an individual or child from abuse, it is covered by legal aid.

The ministers intentions behind of the withdrawal of legal aid for most family private law was to encourage these kinds of disputes to be settled outside the courtroom, supposedly saving the courts time and money. Legal aid mediation for divorce proceedings and custody battles is still available. However it is means tested; there is a simple online government calculator that helps individuals see if their circumstances qualify them for family legal aid.

Options Outside of Legal Aid

Although, the changes may not be having the intended impact – in recent months there has been an increase in the number of parents applying to go to court for this matter and a decrease in the use of mediators in England and Wales. If individuals are not eligible for legal aid and do not feel mediation is the right option for them, a lot of solicitors offer payment packages which help to try and limit the cost and/or spread it out over time. Some individuals may also choose to represent themselves, although having an initial consultation with a lawyer is probably advisable – various organisations can help with this such as the citizen’s advice bureau.

More Proposed Changes

Further restrictions to general legal aid access are currently being debated; it has been proposed that there should be income restrictions. If the changes go ahead it will mean any individuals with excessive of £3,000 per month after essential outgoings, tax and mortgage will not be able to gain legal aid – neither will those who have lived in the UK for less than a year.

New Presumption of Parental Involvement: Is the law too concerned with appeasing the parent?

The welfare of the child has always been the fundamental consideration for courts dealing with child arrangements following a couple’s separation. The welfare checklist set out in S8 of the Children Act 1989 provides statutory guidance that requires certain factors to be considered. Amongst other things, the wishes and feelings of the child and the child’s needs are considered, so that the most appropriate arrangement is reached. Due to the subjective requirements of each child, extreme care must be taken to ensure that the specific needs of the child are met.

Consideration must be given to where the child should live and how often they should see or speak to each parent. Until recently, these matters were addressed through residence and contact orders respectively; however, these were replaced with the all-encompassing child arrangement orders in April 2014. The purpose of the amendment was to shift the focus away from the name of the order and towards the content. Too often, parents were being side-tracked and, instead of focusing on their child’s best interests, they were becoming fixated on becoming the parent with residence. By removing the concept of a ‘winner’ and a ‘loser’, it was hoped that the focus would return to the child.

A further change to the law came into force on 22 October 2014, whereby S1 Children Act 1989 was amended to include the presumption that it is in the best interests of the child for both parents to be involved in the child’s life, unless evidence to the contrary is shown. Explaining the legislative changes, Mr Justice Hughes stated that, “No parent should be excluded from their child’s life for no good reason.”

But when has the law ever allowed this to happen? Surely it goes without saying that as long as it is safe to do so, then parental involvement will be encouraged? Judges have been dealing with parental disputes for many years and reported cases show that even when a parent’s conduct has been questionable some sort of contact has been maintained, as long as there is no risk to the child.

“As a result, one could be forgiven for thinking that the amendment brings nothing new to the table,” says Katie McCann, Head of Family Law for Kuits. “However, what it does do is shift both parent’s involvement from being a consideration to a presumption that is not to be strayed from without good reason.” As Mr Justice Hughes goes on to explain, “This is not about giving parents new ‘rights’ but making clear… that the family court will presume that each parent will play a role in the future life of their children.”

It is important to clarify that the changes to the Children Act do not create a presumption of equal parenting. Although this idea was considered initially when the above provisions were drafted, it did not come into fruition, and rightly so. A presumption of a 50:50 split in relation to parenting would not compliment the welfare principle and would be a potentially dangerous move in some cases. The risks attached to such a presumption are highlighted by Australian family law and the devastating case of 4-year-old Darcy Freeman, who died at the hands of her father in 2009. He had been given access to his children under the Australian shared parenting law, despite concerns from his ex-wife as to the safety of this. This tragic case emphasises that a presumption of shared parenting can easily jeopardise the safety of a child, without relevant checks and balances being in place.

“The UK law appears to tread with caution by expressing that the presumed involvement may be direct or indirect,” says McCann. “Although the importance of child-parent contact is acknowledged, the law is not prepared to endanger the child and therefore indirect contact may be appropriate where there is the potential of harm through direct contact. Although this approach appears to be balanced and sensible, the motives behind the recent amendments can be questioned. There is room to argue that the introduction of child arrangement orders and the insertion of the presumption of parental involvement are both for the benefit of the parent, as opposed to the child.

“As stated above, the involvement presumption has always existed and recording it in statute simply reassures parents that, unless there is a good reason to the contrary, they will remain involved in their child’s life. The introduction of child arrangement orders does nothing more than rebrand contact and residence orders by placing them in a slightly more modern and less stigmatising packaging. Massaging the ego of the parent that does not gain the label of a ‘residence order’ appears to be the main objective. By focusing on accommodating the parents’ feelings, it can be argued that the child’s welfare becomes less of a priority and this is unacceptable.”

The government do not accept that the focus has been shifted away from the child and explain that, on the contrary, the purpose of the changes is to ensure such focus remains intact. They claim that the aim of the legislative amendments is to promote a greater understanding of how the courts reach their decisions in cases relating to parental disputes. The hope is that, in doing so, parents will be persuaded to take a less rigid approach, secure in the knowledge that their involvement is desired.

“It is still early days and one cannot be sure of the effects, if any, of the legislative changes,” concludes McCann. “However, if the government’s outcomes are achieved, it is hoped that parents will stop trying to win the ‘custodial war.’ In turn, this will ensure that focus is placed on accommodating the child’s best interests and this, of course, is the ultimate goal.”

Steps to a stress free divorce

Divorce cases can seriously tug at the heartstrings of family solicitors but it can also be a very stress full process for all parties involved including the solicitor.

Taking the step to deciding on filing for a divorce will never come easy and can often be put off due to the of fear of how long the process can take and how much additional stress it can cause on the family.

The divorce process is actually not that difficult and can be made simpler with both parties staying calm and being fair throughout the separation.

Agreement from the start

Establishing who the role of the ‘Petitioner’ is going to be is the first step along with the alternative party being given the title of ‘Respondent.’

After the roles have been decided which will normally come quite naturally, it is wise to invest some time into looking for expert advice from some of the top divorce solicitors in London.

The Basics

The petitioner at the point of filing for the divorce application chooses the grounds of the divorce.

The most common grounds for divorce are often irreconcilable difference or for unreasonable behaviour.

Regardless of the grounds for divorce, proof and any necessary evidence is required from both the petitioner and the respondent. This is where the help of a divorce solicitor can help establish a valid reason for divorce.

Financial Matters

Financial matters can cause the biggest issues during divorce, however if the financial matters such as the separation of property can be decided with minimum fuss, the divorce flows through the process a lot easier.

The Process

The arrangements for children need to be set out in a statement known as the “Petition for Divorce” which is sent to the court

The court then processes the statement, the court will then send them onto the Respondent where it requires this party member to acknowledge and agree to the contents, known as “Acknowledgement of Service.” This then has to be sent on to the Petitioner who verifies the details of the Respondent and sends both the application and the affidavit back to court where the case will be considered by a district judge. If the judge agrees to the divorce, neither party is required to be present in court.

The Petitioner has to wait around six weeks before applying for the Decree Nisi, failure to do so means that the Respondent can take control and complete the divorce process.

This is the final step to divorce, however if the Respondent has to take control then the situation will become a lot more complicated then necessary.

The Decree Absolute is a vital legal document and needs to be kept for future reference or the possibility of marriage should either party wish to remarry after the divorce.

For more information on the divorce process, seek the help of family solicitors in London or contact your local solicitors for a face-to-face appointment.

What to Do Before You File for Divorce in Florida

We all know that divorce is a complicated, emotional and stressful process. Even the most amicable of divorces can still be a difficult matter. Before you file for a divorce in the state of Florida, there are a few things you are going to need to do to get prepared. These steps will help lessen the trauma for all parties involved, and ensure that everyone is treated fairly.

Stabilization Courses

The State of Florida requires all parents with children to undergo special stabilization courses. These courses are designed to help the parents find a way to make the process less traumatic for the children involved.

Some of these courses are available online, but in most cases, you will need to attend an actual class before you can proceed. These classes will also help parents put their children’s needs first, and help both parties decide what type of custody arrangements are going to be best for everyone involved.

Your attorney can assist you in setting up attendance in these courses and provide you with guidance on how to arrange custody that suits the best interests of the children involved.

Equitable Distribution

The State of Florida practices what is called equitable distribution of property in divorce cases. Unlike other states that simply divide assets down the middle, the state will determine what is fair and balanced when it comes to the division of property.

It is vital to have an attorney who is well qualified to assist you in this process. While it would be ideal if all parties are treated fairly, in many divorce cases, this just doesn’t happen. It is helpful to make a list of all of your current assets, both joint and single, to determine just what is going to be on the table. A divorce arbitrator can be helpful in this situation, particularly if it is an amicable divorce. However, if it is a contested divorce, or both parties cannot come to an agreement on equitable property distribution, this is a where an attorney is a vital part of the process.

Financial Preparedness

Divorce can easily cause havoc in both party’s financial lives. In order to minimize the impact, it is best to begin splitting up your finances as soon as you can in the process. Determine who owns what in your shared accounts and withdraw the agreed upon amount and place it in new accounts that the other party cannot access. We all like to think that we know our partners and that they wouldn’t be tempted to drain a joint account, but it happens all too often.

Shared utility bills will also need to be split. If you have your partner as a beneficiary on a life policy, now is also a good time to start the process to change the beneficiaries.

This is not an easy process, and it can be emotional. However, if both parties can realize it is for the greater good in the end, typically, it can be easier to get your financial affairs in order.

Finding the Right Divorce Attorney

You will need to have proper representation during your divorce proceedings. Many people make the mistake of thinking that in a relationship where there are no children that they don’t need an attorney, but end up finding out too late they should have had representation.

Look for a divorce attorney with a proven track record in handling many different types of family law cases. If you are a man, look for an attorney that specializes in the rights of the man during the divorce process. All too often, these cases are skewed in favor of the woman, particularly when custody battles are raging. You will need to find someone who can defend you and what is best for your children.

Irretrievably Broken

Florida law states that divorces will only be granted if the marriage is proven to be “irretrievably” broken or if one of the parties is diagnosed as mentally incapacitated. Unlike a “no-fault” state where reasons for the divorce do not have to be given, you will need to prove to the court that your marriage is over and there is no hope for reconciliation.

Your attorney will be able to present your case to the State to show that the marriage cannot be repaired and begin the process of equitable distribution, while making sure your best interests are being served.

About the author:
James M. Burns of the Law Office of James M. Burns has served clients in Florida and Alabama for nearly two decades and brings a wealth of experience and legal savvy to your side when you need a staunch supporter and smart legal representation.

The Need for Greater Family Law Court Judgements

Many family law hearings in the UK are held in secret, but more will be published in the future, says the court of protection. Unless there are extremely compelling reason not to, judges will give permission to make the hearing public. More details will emerge from sensitive domestic disputes, even if some of them are anonymised. These new regulations will begin on the 3rd of February. Sir James Munby is the main man who has been pushing for these reforms to the family court system.

This move will improve public understanding about the court process, and hopefully incur greater faith in the system. Public debates about famous cases – such as the pregnant lady who was forced to receive a caesarean – are often misinformed because the facts aren’t readily available. False reporting isn’t always the fault of the media, if they can’t access the details of the hearing. With greater transparency, public debates and articles will be better informed of all the facts. This will hopefully create a less biased account of events.

The Decision

There are two types of judgements: normally published cases and possibly publishable cases. These categories provide the framework in which a decision is made.

The judge will only publish the hearing if he or she deems that it’s in the public interest to do so. Families under protection, children, and vulnerable individuals that can’t usually make their own decisions, will obviously continue to benefit from anonymity. A judge will choose to keep a judgement or case secret, if this would breach any important anonymity. In many cases, the judge will decide what is appropriate for publication – he or she is not allowed to publish information at the request of a party or the media. The judge must decide that it’s within the public interest.

Is That All?

Exonerated parents or anonymous parties may wish to discuss their experience with the media; sometimes this is advantageous to the case, as it can bring forward more evidence or witnesses. Otherwise, there are strict rules about what the media can or can’t publish from the family courts. Journalists can attend hearings, but they need to obtain the court’s permission if they want to report the case.

There may be details which a journalist isn’t able to publish, due to the sensitivity of the details.

In the court of protection, the hearings are private – the media and the public aren’t allowed in. This is to safeguard the rights of vulnerable people who would suffer unduly if the contents of the case were made public. It seems like this will happen more rarely in the future, as the government is on an anti-privacy binge.

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.

Not mandating equal split of the assets, but rather an informed and possibly unequal distribution can be the best way to decide these issues in some cases, which is why some most states practice equitable distribution instead of community property. Your divorce attorney should help you understand how the law works in your area, whether you live in a community property or equitable distribution state.

Community Property

Community property states include Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Alaska allows couples to opt in for community property, and Puerto Rico is also considered community property jurisdiction. For couples who get married in a Community Property State, whatever they earn or acquire during the marriage is co-owned equally by both husband and wife, and will therefore be split up equally in the event that the marriage dissolves.

The only exemption to this equal split is property inherited by one party, which would stay with that party completely in the event of a divorce.

The principle behind community property states lies in the collective family unit.

While two people are married, the fruit of their labors should go toward bettering the family unit, a community pool that exists for this very reason. In this sense, the community property states do have a valid argument. Let’s examine the typical scenario that some people might think of in the event of marriage dissolution.

Consider Bob and Sally

Imagine a husband Bob with a high paying job; he is the primary financial provider. Imagine the wife Sally also has a good job, but she only works part time due to the care she provides their one year old son Bobby Jr. Sally not only spends quality time taking care of Jr., she also cooks, cleans and acts as a sort of assistant to the ever forgetful Bob. If, over the course of the marriage, Bob manages to pay off his mortgage and save some money for a total asset value one million dollars. Suppose Sally was only able to contribute 30,000 to savings over the years. What little money she made she spent on clothes and entertainment, but it didn’t matter much to the family at the time because Bob was making more than enough for the both of them. Bob really appreciated the “feminine touch” Sally brought to the house, the home cooked meals and that Bobby Jr. didn’t have to spend most of his time daycare being raised by some stranger.

Many people argue that because Bob and Sally were working as a team for the good of their family, Bob would not have been able to be where he is today without Sally’s many contributions to the family, and there is just no way to put a price tag on that. With that mindset, it should make sense to just split everything in half right? Since Bob’s and Sally’s assets equal one million dollars plus the 30,000, they both should receive $515,000. This is what would most likely occur in a community property state.

This can also be seen as very unreasonable, it really can’t be that hard to figure out that “price tag” to put on Sally’s contributions.

Equitable distribution

Equitable distribution is all about finding a more balanced division of assets based on many factors. Many things enter into the equation such as how long the marriage lasted, what the established standard of living was, and the value of childcare and homemaking that each party contributed. Even whether one party invested in the other’s education or training, and the age, health, income or future earning capacity of both parties should be considered when trying to divide property. The goal here is not to split assets and debts directly down the middle and have Bob and Sally go their separate ways, the goal is to figure out what is most unbiased and fair distribution of property considering the circumstances.

Florida, for example, is an equitable distribution state so the outcome of the divorce might be somewhat different than both receiving $515,000. The court will start at that number (equal halves) and then perfect it based on the many factors stated above. Perhaps Sally would receive a little less, but it will be her equitable share. Sally may get the home to raise Bobby Jr. in until he grows up since she has put so much effort into making the house a home, and being there for Bobby Jr. as he grows.

Florida is also a “no fault” state, meaning that the division of property is not affected by the fact that either party has been unfaithful. It would be a mistake for Sally to assume that Bob’s affair would get her more property than him in the divorce proceedings. A divorce attorney  should be contacted should you have any queries.

There are a lot of factors to consider in the division of property, but ultimately each equitable distribution case will be different.

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.

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

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.

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