With the Law Commission proposing that marital property agreements (MPAs), covering pre and post-nuptial agreements, should be legally binding only last month, it is a fitting time to publish the results of a survey that has been undertaken (by Alex Porter, who announced the statistics first in full here) which analysed the work of legal professionals involved with MPAs. This project is part of a major study led by Dr Laure Sauvé from the University of Essex, School of Law. Her project will analyse the latest report by the Law Commission using a comparative approach. She is currently exploring the differences between English and French laws.
Category: Property issues
Property and divorce law – what happens to your property on marriage or divorce? Read more blogs on this from specialist family lawyers and property law firms in the UK, UK and beyond.
(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.
(Victorian & Australian Law. Click here for Top Family Lawyers in Australia)
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…
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.
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.
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.
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.
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.
Running a business is a difficult task that often requires hard work and a great deal of planning. Often, it can take years—or even decades—to get a business off and ground and ensure its success. It should come as no surprise, then, that business owners who are successful want to maintain the quality of their organization by identifying a skilled successor. Working with a group of professionals can be crucial when it comes to effective succession planning for an experienced businessman or woman.
What is Succession Planning?
Understanding the basics of succession planning is crucial for those who really want to achieve success with this important task. As one might guess from the name, success planning occurs when a business owner pinpoints one or more individuals who will take control of the company in question, pending the retirement, incapacitation, or death of the owner. Succession planning is not only important for the mentality of employees, but also ensures that the organization will continue to run smoothly as it changes hands. While it can be tempting to wait until the later years of life to consider succession planning, starting early is generally considered to be a better option.
Choosing a Successor
Choosing a successor is often considered to be the first step when it comes to effective succession planning. According to Forbes, a family member is not always the best choice when it comes to handing over the business. Similarly, just because one individual has served as “second in command” for the last few years does not mean that he or she has what it takes to actually run the organization successfully. Instead, business owners should carefully identify their current staff and determine who has what it takes to successfully steer the company in its desired direction in the future.
Serving as a Mentor
While choosing a successor is the first step of succession planning, it is far from the last. In fact, once a successor has been chosen, the hard part has just begun! To ensure optimal results in the success of the business, current owners should serve as a “mentor” to the individual or individuals who have been slated to take over the company down the line. Providing day-to-day tips—as well as long-term recommendations and instructions—can be effective when it comes to ensuring a smooth transition.
Obtaining Assistance in Success Planning
Running a business on one’s own can be difficult, if not all-out impossible. Similarly, business owners often require a great deal of assistance from other professionals when it comes to the challenging task of creating a succession plan for the future. Current business owners should work with a legal team, accountants, and even human resource professionals to maximize their efforts when it comes to this daunting activity. Consultation with other businessmen and women may also prove to be beneficial when it comes to deciding just what route to take with long-term business succession planning.
Police officers play an important role in our world. These professionals not only provide support and assistance during times of emergency, but also help to keep the community safe for all who live within it. While most police officers take their roles quite seriously, some have been known to participate in inappropriate behavior—often referred to as police misconduct. Understanding how to identify police misconduct is crucial for those who want to maintain their rights, while still staying within the good graces of law enforcement professionals.
According to the US Department of Justice, police brutality is one of the most common signs that misconduct is taking place. Except for the in the most severe cases, police have even training and tools at their fingertips to complete their jobs without depending on brute strength. It is important to note that while police brutality is most commonly thought of as physical aggressive, verbal threats and sexual abuse may also fall under this category. Those who have experienced these events are likely the victim of police misconduct, and should report the behavior as soon as possible.
Selective enforcement is another common signs of police misconduct. As suggested by the name, selective enforcement occurs when a police officer does not enforce certain laws or regulations when they are intimately connected with the person or person accused of committing the violation. The most common example of selective enforcement usually occurs in regards to traffic law—for example, a police officer chooses not to issue a citation to a friend or family member that he or she has pulled over for speeding. While it may be highly tempting to simply let these individuals off with a warning, it is actually a serious case of police misconduct.
Lying Under Oath
There are a number of police rights that are enforced in courtrooms and other law enforcement arenas around the world. However, these rights are only maintained in cases where the officer “plays by the rules” and maintain professionalism within the role that they have been given. Unfortunately, this is not always the case—in fact, some officers go so far as to lie under oath, in order to get the final outcome that they desire. As with the other factors described so far in this article, lying under oath is a serious sign of police misconduct, which should not be taken lightly.
Using Drugs/Alcohol While on Duty
As one might guess, police officers that use drugs or alcohol while on duty are also likely practicing police misconduct. Any officer of the law is expected to be clean and sober, as they may have to respond to a dangerous event at any given moment. Officers who have been found to be using drugs or alcohol while on the job may be placed on probation for an extended period of time. Regular blood and urine tests may be required if and when their role as a police officer is reinstated.
The number of families contesting wills has risen dramatically since the recession. In 2008 some law firms estimated that the amount of wills being contested in court had doubled, or even tripled, in the UK. Studies indicate they have continued to soar since then.
A high proportion of these court cases are caused by incidents which are entirely preventable, meaning thousands of pounds worth of money is being wasted on legal costs every year. Let’s explore some of the main reasons why people decide to contest a will.
Wills are ‘unfair’
The main cause of a will being contested in the UK is that a family member believes that it is unfair on them. When writing their will, some people believe they have the right so spread their money however they like, but that’s not necessarily true. Family members do have a legal right to contest a will if they have not been allotted what they deserve. If the deceased leaves one son out of their will, whilst keeping all their brothers and sisters in, this could legally be deemed unfair.
Lack of mental capacity
Wills can be contested if it is believed that the testator lacked the mental capacity to write a sensible will. If it can be proved that the testator lacked the capacity to understand how much property they owned, the identity of their loved ones or the basic logic behind what a will is then a will could be contested. This type of contest would typically occur if the testator had a mental illness when writing their will.
If it can be proved that the testator was forced or blackmailed into executing their will a certain way, it can be contested.
If the testator was deceived into writing their will a certain way, this could be judged as probate fraud. In this case, there are two main types of deception. The first of these is fraud in the execution, such as making the testator believe they are signing something other than a will. The second type is fraud in the inducement, which could involve deliberately mis-leading the testator in order to change their course of action.
If the deceased appears to be giving away something that doesn’t actually belong to them, then this represents strong grounds for appeal.
Incorrectly drafted will
A will can be contested if it is believed that an accidental error was made. This contest might come in the form of a lawsuit against the person who drafted the will. It can be hard to prove though. If the wronged person was left out of the will altogether is not a family member and was left out of their will altogether, they have no grounds for appeal.
The common theme linking all six of these scenarios is that the odds of them occurring are significantly reduced when the testator hires a professional will writing service. These services are staffed with experts on probate law and will can offer advice that can prevent wills being appealed against once you die.
The small fee paid to the professional will writer could save a family thousands of pounds in legal costs later on down the line.
When most people think of divorce, they envision scenes from War of the Roses or Kramer vs. Kramer. Yet more people in Tampa Bay are learning that there is another way, collaborative divorce, which is just a sensible method to resolve private family disputes. However, just as mediation was characterized in the 1980’s and 1990’s as a rich person’s option, many people think that the collaborative process is only for the very wealthy. Not only attorneys, but also a collaborative facilitator and financial professional are retained, so only the very rich can afford the collaborative model, right?
A four year study conducted by the International Academy of Collaborative Professionals found that 87% of female participants and 47% of male participants of collaborative family law cases had an annual income of less than $100,000.
Though the collaborative process may not be the cheapest in all cases, it has a substantial opportunity to save you money as compared to the courtroom battles we have all come to associate with divorce.
First, child issues, such as custody schedules and decision-making authority, are some of the most emotional and costliest issues in family law matters. Lawyers in courtroom cases tend to prepare interrogatories (questions) to be answered under penalty of perjury, set depositions, conduct opposition research to put the other spouse in the worst possible light, and prepare for trial. Attorneys’ invoices pile up along each stage of this process. Alternatively, these fees and costs can be greatly reduced in the collaborative process where facilitators, who usually are licensed mental health professionals, can cut through the clutter of emotionally-charged issues and bring the clients (and lawyers) to focus on the future and best interests of the children.
Similarly, a financial professional (who is usually either an accountant or financial planner) adds cost-saving value to the process. In litigated cases, lawyers prepare “requests for production of documents and things” that demand reams of financial documents which could conceivably be relevant. Searching for those documents cost clients tremendous time and money while, when received, the requesting attorney will spend countless billable hours meticulously combing through the documents. In the collaborative process, on the other hand, the financial professional will only request documents that are necessary to make an informed settlement option. His or her expertise in finances enables the financial professional to review and assess the documents and develop settlement options more quickly (and often times at a lower rate) than attorneys.
Finally, the dirty little secret in family law is that the vast majority of litigation cases eventually settle. However, because having a judge decide on the parties’ personal matters always remains a threat, in traditional courtroom divorce the attorneys will always work on two tracks: (i) attempt to settle the case while (ii) conducting opposition research and preparing for the courtroom battle in case the parties cannot come to an agreement. In the collaborative process, attorneys are retained solely for the purpose of settlement and are contractually barred from taking disputes to be decided in court, and so they are not racking up those billable hours planning to fight it out in court.
Now, back to the question, is collaborative divorce only for the wealthy? Absolutely not, and I would be happy to speak with you and talk more about how the process can help your family.
If you have questions regarding how a Tampa Bay collaborative divorce process can help you, schedule a consultation with attorney Adam B. Cordover at (813) 443-0615 or fill out our contact form.
Adam B. Cordover is Vice President of the Collaborative Divorce Institute of Tampa Bay and is a member of the International Academy of Collaborative Professionals. Adam spearheaded the taskforce that drafted the Hillsborough County collaborative family practice administrative order signed by Chief Judge Manuel Menendez.
Most marriages end in divorce. Different jurisdictions have different rules pertaining to how assets and liabilities are distributed to the parties after a divorce. When young married couples decide to divorce, student loan debt is a common liability that the parties must cope with. Ongoing expenses that may be incurred if one spouse is actively attending college can influence the amount of alimony awarded to a spouse.
Our lawyers at Tenn And Tenn, P.A. tell us that states generally fall into three categories when discussing divorce. In community property states and if the parties have not agreed to distribute assets in a certain manner, the court will divide the marital assets in half. If the debt is incurred during the marriage, the courts will view student loan debt as community property. Student loan debt is a liability and hence is subject to being apportioned between the parties.Other states follow a common law rule. For example, New York also seeks to divide marital property equitably. Unlike a common law jurisdiction, however, the court need not divide everything equally. A court that follows a common law rule will consider a wide array of factors in order to achieve what it perceives to be a fair outcome. Such factors include whether one spouse has title to a property, whether a spouse has commercial interests, and the couple’s living arrangements.
Some states stretch the equitable distribution concept even further. Some states, like Massachusetts and New Hampshire, also seek to provide an equitable distribution during the asset and liability allocations. These states uniquely consider all property owned by both parties, regardless of whether the assets were acquired during the marriage or owned personally. The fact that a party owned an asset or a liability prior to marriage may be a factor for consideration, but is not determinate of the outcome.
Responsibility to Pay for an Education
Whether a party is responsible for continuing payments on a divorcing spouse’s student loans varies depending upon the court’s decision. Even in community property states, courts have some degree of latitude in making asset decisions. Most states permit courts to order parties to pay other liabilities if the court finds that it would be in the interests of justice to do so.
If one spouse is actively attending college, the issue becomes one of spousal support. Tuition and literary expenditures may increase one party’s living expenses, which can increase the alimony award. Among other factors, courts will often consider retraining or educational expenses in awarding spousal support to one party. If a party who is receiving alimony is attending college or seeking job retraining, the court may increase the award of alimony accordingly. If a court order is issued compelling one party to pay spousal support, that party must do so regardless of whether he or she agrees with the award.
While courts normally follow statutory guidelines, the goal in most states is to achieve an equitable dissolution of the marriage, not an equal one. In most states, courts have a wide degree of latitude to make decisions regarding asset allocations, liability allocations, and spousal support. Navigating the laws and presenting a compelling case in the pleadings requires the knowledge of an experienced local attorney.
Saam Banai is a freelance writer and editor and proponent of fair dispersal of assets after divorce. If you find yourself in the midst of a divorce and have costly college payments to make in addition to everything else, contact a divorce attorney from the firm, Tenn And Tenn, P.A. Their experienced attorneys are uniquely equipped due to their training and experience to provide large law firm excellence in a more client-centered atmosphere.
Below is a guest blog post regarding joint land ownership under US law.
Joint land ownership or joint ownership has a legal term and that is “concurrent ownership”. So, if the law is considered, in general there are three types of “concurrent ownership” situations and these are, joint tenancy, tenants in common, and the two people in a relation like that of marriage, can own a home on joint basis. Now, if the tenants tend to fall off on good terms, if a couple contemplates divorce, problems are supposed to arise with regards to the ownership of the home. The situation can get even more complex, if the homeowners had been facing problem in making the mortgage payments, thereby requiring them to plan a mortgage loan modification.
Joint land ownership in case of relationship breakdowns
In case of relationship breakdowns and joint ownership of properties, it is important to first find out if the joint tenancy commitment has been severed. If a joint tenancy has been cut off, it changes to tenancy in common. So, if this happens, taking out the share of a spouse or partner in particular, becomes easier. Now, can be the joint tenancy cut off? This can easily be achieved through:
1.The bankruptcy filing by any one amongst the joint tenants
2.May be, a written agreement in between the tenants or parties stating, that they from now on will hold the rental property as tenants in common
3.Some of the conducts which is going to render it clearly, that the tenants have severed the ties with regards to joint tenancy
4.A court order in relation to the property, which is going to declare that the property is in no way compatible for joint ownership
However, on the other hand, situations which definitely are not going to result in cut off of joint tenancy are as following:
1.A declaration by a single tenant or party, declaring that the ownership has been severed
2.Simply applying for ending the joint tenancy, like that of making an application to the Victorian Civil and the Administrative Tribunal, so as to get an order on the same
3.Any form of conduct by the parties concerned, which shows that the joint tenancy has been severed, even if it is in the process of getting cut off, and the severance is yet to happen in actuality
4.If one of the owners obtains a home loan or mortgage
5.If one of the owners leases out the property
6.Ejection of only one owner
However, if any cut off on the joint tenancy is not possible, then a situation will have to be considered, under which one party or spouse is said to hold his/her joint land ownership in trust for and also, on behalf of the other partner or spouse. There are mainly two types of trust with regards to such a situation, and these are the constructive trust, and the resulting trust.
The constructive trust is when the judgement court imposes trust so as to do justice to both of the partners in question, or the spouses as well. This judgement is taken free of any particular intention. On the other hand, the entitlement of the resulting trust is the process that involves the transfer of the legal title to a person, who isn’t the beneficial owner with regards to the property. This is more of an “intention enforcing” trust.