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.
Category: Family Law
Family law news and intelligence from family lawyers and family law professionals.
By Nadia Rusinova, LL. M., Attorney-at-law and Lecturer in International/European private law at The Hague University of Applied Sciences, International and European Law Department.
Digital spaces now hold an important place in our democratic societies. “Access to justice” in this context is much discussed issue, however it is not always seen as quite complex as it ought to be, as it includes issues of both ways of accessing the law and access to dispute settlement procedures. However, not everything is all gloom, the developments occurring in this area provide opportunities to improve the quality and efficacy of judicial institutions. That said, they do not come without their own challenges, including requiring specific safeguards to ensure the effective and efficient implement of these new developments.
February 2016 was a busy month for CAFCASS who have experienced a 10% compared to last year in new private law cases from 2,932 to 3,237 referrals. This is in stark contrast to the decline seen in 2014/15 when applications dropped by 27% on the previous year, with May 2014 being the lowest number of new cases received on record.
The court system publicly pits husband versus wife, mother versus father, according to collaborative lawyer Adam B. Cordover. On the heels of the fifth anniversary of his law firm, he declares that he will no longer take part and announces his firm’s new focus and name as Family Diplomacy: A Collaborative Law Firm.
When parents get divorced, they are encouraged to sort out arrangements for any children between themselves, so that things can remain as amicable as possible. The best interests of the children should be the focal consideration and both parents should continue to have a strong involvement in their lives, so long as there are no welfare issues to consider.
In November 2014, Harold Hamm, the CEO of Continental Resources, was ordered to pay his ex-wife Sue Ann $995.5 million in what was described as one of the biggest divorce settlements in history. With the award representing only a fraction of Mr Hamm’s estimated $18 billion empire, Sue Ann appealed, claiming that she should be entitled to a much heftier settlement due to her significant contributions during their 26-year marriage. Conversely, Harold made his own appeal, arguing that the almost $1 billion figure was excessive.
During the couple’s relationship, the pair lived a nomadic lifestyle, surviving on very little money. Following their separation, life continued in a similar manner for Ms Wyatt, who today lives in an ex-council house in Wales with her children. However, things changed dramatically for Mr Vince when he founded Ecotricity in 1995, which is now one of the UK’s biggest green energy companies.Mr Vince’s new lifestyle mirrors his business success and he currently lives in a £3 million 18th-century castle with his new wife and their son.
A stay-at-home father who was supported by his millionaire wife is appealing a court decision that would see him receive a £300,000 lump sum, as well as a long term £50,000 annual maintenance payment.
Property tycoon Didier Thiry has been ordered to pay his ex-wife Alisa Thiry £17 million in a judgement issued by Sir Peter Singer. Due to Mr Thiry’s ill behaviour, which included him acting in a ‘financially predatory fashion’, as well as bombarding his ex-wife with communications throughout the proceedings, the judgement is riddled with references to Thiry’s misconduct. Indeed, Sir Singer described Mr Thiry as an ‘unprincipled rogue’ who had shown a ‘sadistic side to his personality’.
It has been an exciting few weeks in the world of divorce settlements. Less than a month after American Billionaire Harold Hamm was ordered to pay his ex-wife almost $1 billion, the UK’s largest divorce pay-out has hit the headlines as Mrs Justice Roberts ruled that Ms Cooper-Hohn is entitled to £337 million following her divorce from philanthropist Sir Chris Hohn.
Mediation will make the divorce process quicker, fairer and more empowering for both parties, says a family law expert at Manchester-based Kuits Solicitors today to mark the beginning of Family Dispute Resolution Week.
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?
Note also you can see our new guide to some of the best divorce lawyers in the US here.
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.
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.
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.
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.
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.
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.
(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.
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.
The 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
St. Petersburg, Florida