The “Do’s and Don’t’s” of the Initial Family Law Consultation

Deciding to pick up the phone and make that dreaded first call when you feel the time is right to contact an attorney is a petrifying moment.  It’s one of those times in your life where you just have to take the plunge, dial the phone and make the call.

Once you’ve decided on the attorney you want to meet with, a sense of relief may come over you… until the day of the appointment. Panic, fear, confusion, hurt and uncertainty are all natural expectations that an experienced divorce attorney will recognize and deal with when you arrive.  But don’t let your apprehension overcome you. You made the call. You scheduled the appointment.  It’s time. You know meeting with the attorney is the right thing to do. Continue reading The “Do’s and Don’t’s” of the Initial Family Law Consultation

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.

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?

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.

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.