Category: Family Law

Family law news and intelligence from family lawyers and family law professionals.

Categories
Child Custody Children Divorce Law Family Law Finance Marriage Tax

A Collaborative Divorce Interview: Clients and their Attorneys

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Categories
Child Custody Child Support Divorce Law Family Law

Getting the Most Out of Your Family Law Retainer

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

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

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

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

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

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

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

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

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

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

 

Mark Hanks, Attorney Hanks, P.A.

Your Family Attorney

www.attorneyhanks.com

St. Petersburg, Florida

Copyright 2014

Categories
Divorce Law Domestic Violence Family Law

Representing yourself in Court? Good luck with that.

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

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

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

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

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

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

Mark Hanks

Your Family Lawyer

Attorney Hanks, P.A.

www.attorneyhanks.com

Copyright 2014

 

 

Categories
Family Law Mediation

How Family Mediation Can Help You

Life can throw several horrible things at us – sometimes all at once – and when it comes to dealing with the legal aspects of a divorce or family break down, it is often a completely distressing and overwhelming time. You can often feel all alone and like you have no one to turn to for help, or that you’ve been let down by those who you usually turn to. However, there is a way of reopening communication lines and sorting out your legal differences in a calm, relaxed environment: it’s called family mediation, and it can help you during all kinds of circumstances. Here are just a couple of its possible benefits;

If You’re Getting A Divorce Or Separating From Your Partner

If your marriage or civil partnership has come to an end, family mediation can help you to organise things such as division of your property, pension and other assets, financial issues, and arrangements for any children you may have. Mediators understand that things can be uncomfortable and can even get hostile while discussing such important issues, which is why they’re there to make sure that everyone involved remains calm and collected. As the mediator will have a general understanding of family law [and if you make sure that you appoint a jointly accredited family mediator/lawyer, then they will be fully trained and highly experienced in family law], they’ll also be able to provide you with information concerning the legal process of divorce and everything that comes with them. With enough successful mediation sessions, you can avoid lengthy court battles that can drain you of your energy and money, and if you do have children, showing them that problems can be overcome in a friendly, amicable matter can teach them valuable life lessons and help them come to terms with the divorce without worrying about their parents fighting with each other.

If Your Parents Are Getting A Divorce Or Separating

Divorce can be a stressful time for the couple separating, but it can often be much worse for their children. If your parents are currently going through a divorce or separation, it can be difficult to know where you’re going to fit in with their lives, and uncertainties about the future can leave you feeling confused or depressed. This is often made worse by not knowing how to talk to your parents about it, or not being able to communicate with both of them at the same time. This is where family mediation comes in: with these types of sessions, you can sit down with both of your parents and discuss every aspect of their divorce and how it will affect you personally – for instance, where you’ll live and how often you’ll see the parent you don’t live with. This is the perfect opportunity to let your parents know exactly how you feel and what your main concerns are. Just talking about it and getting it off your chest is likely to help you, and knowing the thoughts and feelings of each other will help you all move on with your lives, no matter how hard it may seem at the moment.

Whatever your reasons for needing family mediation, these sessions can help you come to terms with difficult events in your life, and can improve your communication with those people who you may not have been able to speak to before. Take a look online to find your nearest jointly accredited family lawyer/mediator, and don’t be afraid to ask any questions you may have about how the mediation process works.

Tim Bishop is senior partner of Bonallack and Bishop – a law firm whose specialist divorce team working in Wiltshire, Hampshire, Dorset and the Midlands includes two jointly accredited family lawyer/mediators and three collaborative lawyers. For more information about how family mediation or collaborative law can help you, visit their specialist website at http://familymediationcollaborativelaw.co.uk or call them on 01722 422300.

 

Categories
Family Law

Preparing for the Worse: Are Your Stepchildren Legal Beneficiaries?

Parents and step parents carefully plan for their family’s future. This should include preparing for certain eventualities. When a parent dies, a minor child will be left with uncertain living arrangements and an adult child will be left to handle his or her parents’ affairs. Without proper guidance and preparation, the emotional blow of losing a trusted family member can be compounded with severe financial pressures. Parents who plan ahead will have something to leave to their children.

The Importance of Wills and Living Trusts

When a person dies, a judge will supervise the distribution of the decedent’s assets and payments of his or her debts in probate. When a person dies testate, or with a will, his or her estate is executed in accordance with his or her will. In the event that the person dies intestate, or without a will, the estate will be divided in accordance with a body of estate law. There are many personal injury video tutorials that can be watched to get an idea of what happens immediately after a loved one is fatally injured. Distributing assets in the absence of a will normally involves furnishing assets to heirs and spouses. In limited circumstances, the assets of a person who dies without relatives and intestate will escheat to the state.

Certain assets will produce income periodically beyond mere appreciation. Such assets include financial holdings like stock, which may result in the payment of dividends, and rental properties, which will result in rental income. These assets will be divided with the remainder of the decedent’s assets upon his or her death. The devisee or distributee, or person who is entitled to assets under the will or in probate, of these assets will then be entitled to the corresponding income streams.

There are several ways in which one may structure the distribution of his or her estate. Drafting a will is one of the most common techniques. A will is simply a legal document drafted by a person that specifies how his or her assets are to be distributed upon his or her death. A will is most effectively drafted with the assistance of an attorney, as there are limits to what a will may contain and many jurisdictions have specific statutory requirements which must be met before a will is to be given legal weight.

Another way to ensure that certain assets go to certain people is to co-own the asset with the future beneficiary while both parties are still alive. The ability of the executor to distribute a certain asset will be confined to the amount to which the decedent owned the asset. Transferring property while one is alive may result in tax liability incurred at present, but will avoid the inheritance tax and other taxes at a later date. If the property is undervalued at the moment due to a temporary crash, it may be worthwhile to transfer the property to the future beneficiary to reduce the taxation. However, those looking to avoid taxation should consider another method.

The third method to ensure that one’s assets are treated in accordance with one’s wishes is to create a living trust. A living trust is an agreement between the trustor, or person who owns the property at present, and the trustee to hold certain assets in trust for future distribution to other parties. To create a trust, the parties will draft a trust agreement which determines how the decedent’s property is to be distributed. The trustor will then transfer the property to the trustee, where it will be held in trust. There may be multiple trustors who contribute to a living trust and the trustees may be another person, a company, or the trustors themselves while they are alive.

Living trusts come in two forms: revocable and irrevocable. A revocable trust is a trust in which the trustor reserves the right to modify the trust or revoke it altogether. It allows for flexibility in the event that the trustor suddenly requires the assets for living expenses or no longer wishes for specific assets to go to specific people. Most attorneys and financial advisors favor revocable trusts for these reasons. An irrevocable trust is a trust that cannot be revoked by the trustor.

The main benefit to creating a trust is to avoid probate. Probate is a time consuming process which requires the services of an executor and a court. Beneficiaries will not receive any assets or funding until the executor of the estate has settled the estate’s debts to the satisfaction of the court. The executor of the estate will charge fees for his or her services, which can detract from the overall amount to be distributed. By creating a revocable trust, beneficiaries will avoid the delays and fees associated with probate.

Living trusts are not a solution for everyone, however. Inheritance taxes still apply to the value of assets in revocable living trusts. Additionally, the trustee will charge a maintenance fee for his or her services, which can slowly deplete the funds in the trust. Creating a trust that will withstand a legal challenge from a creditor or a jilted heir will also require the services of an attorney, which will further deplete the prospective trustor’s assets. Finally, assets not transferred to the trust must still go through probate.

Life Insurance

Preparing for the worst should include obtaining life insurance. Life insurance will provide the beneficiary specified by the policyholder with benefits upon the policyholder’s death. These benefits can help the policyholder’s immediate family members maintain their standard of living even after the policyholder passes on. There are several different types of life insurance policies available to suit different needs.

How much life insurance one should carry is a matter of personal preference and subjective judgment. When a person dies, funeral costs alone can reach thousands of dollars. A modest life insurance policy will cover these losses. Life insurance policies may be taken out for any amount, ranging from just enough to cover funeral costs to millions of dollars. Generally, policyholders should ensure that their benefits cover several years of their income.

Carrying a life insurance policy has two primary benefits over simply saving money and including it as a part of one’s estate. First, life insurance proceeds are generally exempt from taxation. When a person dies, the value of his or her estate is taxed; life insurance payable to specific beneficiaries is not included when determining inheritance tax. Second, life insurance allows beneficiaries to avoid probate, which allows for quick and relatively hassle-free payments.

Social Security Benefits

Social Security benefits include a limited death benefit payable to unmarried children and spouses. This benefit is limited to $255, so it likely pales in comparison to benefits distributed by a life insurance policy and the value of one’s estate. To be eligible to receive this death benefit, the spouse or child must have been receiving benefits under the worker’s record or have been eligible to do so.

None of the aforementioned methods is a substitute for another. People who are concerned about the well-being of their children should have a will, life insurance, and certain assets in a trust. As one attorney’s personal injury video states, getting injured in an accident can cause all types of issues that you may have never thought of before.  Setting one’s financial affairs in order will help ease the burden on one’s family in the event that a serious accident or sudden illness occurs. Those looking to create a living trust, a will, or any other document that is important to end of life decisions should consult with an experienced estate lawyer.

 

Categories
Family Law Marriage

Referrals to Family Mediation are Rapidly Declining

There are many reasons for the introduction of mediation into a legal matter. In addition to finding suitable alternatives for childcare and financial arrangements, family mediation can help to prevent long winded or drawn out court sessions.

The government introduced mediation as a vital part of the legal family process in an effort to abate those people concerned that the removal of legal aid would cause huge problems for the family courts, leaving them massively overworked and the clients suffering.

However, recent evidence suggests that the referrals to these mediation sessions have in fact dropped. Official statistics obtained by the Law Society Gazette show that the number of family mediation referrals fell by an average of 26% for the period April to June 2013 when compared with the same period in 2012.

The Reasons

Whenever a significant pattern or turn of events is records, then it stands to reason that experts will attempt to find a reason for the pattern.

In the case of mediation services throughout 2013, it is worth commenting that legal aid for private family matters (such as divorce or child contact) was removed as part of government cuts as of April this year.

Whilst Legal Aid is still available for mediation, for many other matters, it may not be applicable and whilst many of the referrals for family mediation Southampton might come from solicitors, if their numbers have also dwindled due to a lack of public funding, then it stands to reason that the number of clients they are able to refer for mediation would also drop significantly.

The Solution

As one of the government’s biggest ideas, it’s unlikely that people including legal practitioners will be able to forget that services such as Lamport Bassitt family mediation services exist altogether. However, a solution must be found to the low numbers.

In one case, there is the prospect that as of January 2014 family mediation will be compulsory. What this means is that any party wishing to start legal proceedings in the family court will not be allowed to do so until they have attended a MIAM, the name given to a Mediation Information Assessment Meeting. However, as much as this may be a step in the right direction, practitioners and legal professionals have expressed concern that this could be too late as many of the mediators who would provide the services would have gone out of business by then as a result of the lower numbers of people attending mediation.

A further suggestion comes from Lord MacNally in his March 2013 speech when he suggested, even prior to the release of the figures that mediators themselves have a large part to play in promoting their services to the legal profession and building relationships with firms of solicitors. He said, “I am looking to you, the family mediation profession, to bring family mediation into the mainstream as the first choice for families to help them make their arrangements post separation – and not just because they have to. Regardless of your background, mediation, the law, or social work, you can bring this about.”

If you require mediation services visit www.lbmediation.co.uk for more information about Lamport Bassitt Mediation Services.

Categories
Child Support Children Divorce Law Family Law

How To Be A Good Parent Even After The Divorce

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

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

Put The Child First:

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

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

Remember It’s Not About You:

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

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

Look At The Positives:

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

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

Always Be Respectful:

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

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

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

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

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

How Military Divorce Differs from Regular Divorce

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

Child Custody

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

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

Division of Military Pensions

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

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

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

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

Survivor Benefits

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

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

Military Divorce Lawyer

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

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

Family Law Property Issues in Australia

(Victorian & Australian Law. 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…

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.

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

Florida Same Sex Separations and Collaborative Family Law

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

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

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

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

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

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

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

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

—

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

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

 

Categories
Divorce Law Family Law Marriage

The true cost of divorce in the UK

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

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

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

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

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

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

1. DIY divorce

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

2. Online divorce websites

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

3. Fixed fee divorces

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

4. Open ended divorce fees

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

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

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

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

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

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

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

 

Euan Davidson

Family mediator

Godalming Family Mediation

www.godalmingfamilymediation.co.uk

Categories
Family Law Property issues

Business Owners: Who Will Take the Helm Once You’re Gone?

Succession Planning
Succession Planning

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.

Categories
Family Law Property issues Uncategorized

How to Identify Police Misconduct

police brutalityPolice 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.

 

Police Brutality

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

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.

Categories
Executry & Probate Family Law Finance Property issues

Six common reasons to contest a will

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.

Duress

If it can be proved that the testator was forced or blackmailed into executing their will a certain way, it can be contested.

Fraud

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.

Disputed ownership

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.

Categories
Family Law

Family Law: A Brief Introduction

Family law is an important area of the law that developed somewhat separately and specially in order to handle the complex, complicated relationships within families. After all, the law is often a strict, black and white creature that wasn’t quite built to deal with the gray areas that many families who come to the law encounter.

So, let’s take a closer look at some common areas of family law in what will be a brief introduction to it, helping out both budding lawyers and families in need of legal services.

Common Areas of Family Law

Marriage — Marriage is a common area of family law. Getting married isn’t really all about the dress or the reception. There is also a lot of paperwork that is required, especially for women who often have to change their last name to their husband’s.

In addition, getting married also means having to consider legal measures, such as a prenuptial agreement, which is a contract entered into prior to getting married and ensures who will get what in case the marriage doesn’t work out, and the married couple decides to get a divorce.

Divorce — So, divorce is also common area of family law. Divorces can get messy, and so can the issues and problems that their lawyers have to deal with, which often goes beyond paperwork. For this reason, many couple going through a divorce are encouraged to attend therapy.

Child Custody — And, what about the kids who often get wrapped up in a divorce? They are also encouraged to attend therapy, but it might not help with the fact that they will suddenly only be able to see one parent. After all, most divorce cases end with one parent being granted child custody, while the other parent is forced to see their child on the weekends if at all.

Child Support — However, when divorce occurs and sometimes when it doesn’t because the parties aren’t married and have had a child outside of wedlock, a party can still be forced by the law to take care of their child. This may not include weekend visits, but it can include child support, or payments to help support the child.

Wills and Estates — Finally, wills and estates are often a part of property law, but they can become entwined with family law, especially if family disputes are occurring over an inheritance.

Jennifer Machie writes for Colley & Colley, LLP.

Categories
Family Law

Family Law Disputes After Attack on Reforms

Lord Justice Ryder’s call for Social Workers to be present in family law court cases to provide witness evidence has been attacked by a leading family expert.

Doctor Judith Freedman, Head of Consortium of Expert Witnesses stated;

‘I have nothing against the role of social worked, I wish that social workers were able to the work better.’

Dr Judith Freedman went onto claim that social workers are trained to deal with family situations but are not trained in mental health assessments and disagreed with Sir James Munby, president of the family division who claimed that social workers are the new experts in family law situations.

‘I just hope that when the president, Lord Justice Ryder and Mr Douglas go to hospital to have an operation, they can look forward to being operated on by social workers.’

She said that her 600 members have been confused by the mixed messages given by Lord Justice Ryder regarding the reforms announced last year.

Last year government plans were to weed out incompetent psychologists and other family experts in order to save time and money after 65% of expert reports were  deemed as poor quality.

Lib Dem MP John Hemming, who campaigns for family law reform, last year said that he “welcomed” the move after explaining that some experts are responsible for life-changing decisions without the back up of social witnesses.

He told MPs that “The idea that psychologists can come to conclusions about people and their merits as parents without even seeing them is an absurdity.”

Experts can play a serious role in family law court cases regarding whether parents are fit to care for their children of whether their psychological problems are treatable. However 20% of psychologists used as experts in family court cases are not deemed as qualified.

Family solicitors in Kent and solicitors Maidstone are qualified to provide professional advice and information on all types of Family Law cases and news. Solicitors specialising in Family Law need to stay alert for the latest Family Law News in order to keep clients up to date.

Categories
Family Law

5 Wrongful Death Myths Busted!

If a close family member dies and you believe that a person or entity is directly responsible for his death, you can bring a wrongful death lawsuit. Now the problem here is that not many people are aware about what constitutes a wrongful death claim. They don’t know what they are all about, the kind of compensation one can claim, who to sue etc. Some of these people believe the many myths that go around these claims and they choose to believe the myths that suit them and ignore the others. But a wrongful death claim is a legal case and if you believe even one of the many myths going around, then your claim will fall apart.

You don’t want that to happen do you? So take a good hard look at 5 myths about these claims that we have busted in this article:

1. Myth: A wrongful death claim can be filed at anytime

Truth: There are people who are under the impression they can take their own sweet time for filing this claim. But the truth is there is specific time limit within which this case needs to be filed. This time limit is typically between 1-3 years, but in a state like North Carolina you have just two years within which to file your claim. If you don’t file a claim within the time limit as decreed by the statute of limitations, you won’t be able to recover any damages.

2. Myth: You can even make a claim if death occurs long after Injury

Nothing can be farther from the truth. If the family member has suffered an injury and dies from it after a certain period of time and we are talking many years later, you can’t file a wrongful death claim. The fact that he suffered from an injury and he didn’t immediately die from the injury means you can only file a personal injury claim. So it’s the personal injury statutes of limitations that will determine the merits and demerits of the particular case.

3. Myth: Anybody can sue for wrongful death

Truth: If you are an immediate family member like the spouse, child, adopted child, etc., you can recover damages under the wrongful death action. This remains true across all states. But in some states, even life partners and financial dependents have right of recovery. Then there are some states who allow even distant family members like brothers, sisters and grandparents to file wrongful death claims. And in some special cases, people who aren’t related by blood or marriage to the victim can file wrongful death claims if they have suffered financially from the death. Therefore the myth that just any Tom, Dick and Harry can bring a wrongful death action must be busted to bits.

4. Myth: You don’t require expert help to get an appropriate settlement amount

Truth: Some people have this blind belief in the insurance company adjuster and think that he will help them get their hands on the amount that they are entitled to. This belief sometimes costs them big, because they don’t realize that the adjuster’s job is to not just to protect their interests, but also that of the company. And the insurance company wants to get away with paying as little amount as possible to the claimant. This is why you need expert help in the form of an attorney specializing in handling wrongful death claims. If you are filing a wrongful death claim, you don’t want to be taking a wrong step and forfeit a substantial payout. This is why expert help is necessary.

5. Myth: Wrongful Death Claims only Relates to Medical Malpractice

Truth: Agreed, wrongful death caused by medical malpractice form a huge portion of the wrongful death claims filed, but these claims are not just related to medical malpractice alone. They can also include fatal car accidents or even the negligence of companies, individuals or even government agencies that leads to the death of a person.

The idea behind listing out and busting these 5 myths is to make sure that people don’t believe the wrong things while filing their claim. It’s important to get a very clear idea about the legalities of any claim that you want to file to make sure that the claim is settled appropriately.

Categories
Claims Family Law

Family Member a Victim of Fraud Against the Government? How to Fight Back

Fraud

(US law) Criminal acts commonly result in collateral damage. When the criminal act results in the taking of a human life, the victim’s family may be left with a lost source of income and an emotional toll that can never be overcome. In such cases, members of the immediate family may file a civil action to recover damages. Fraud against the government is no exception, although in such cases, family members have an additional option.

Suing for Wrongful Death

Wrongful death lawsuits entitle certain people, usually immediate family members, executors of an estate, or other appointed parties, to sue on behalf of a person who was killed as the result of another person’s wrongful act. A wrongful act is an illegal or tortious act. In the context of an unnecessary medical procedure, the wrongful act may be fraud; in the context of a procedure that the patient never consented to, the wrongful act may be battery.

The only difference between a person being killed by a drunk driver and by an ongoing Medicare fraud is the chain of events that led to the death and the complexity of the fact pattern. The underlying concept is the same: a wrongful act caused a death and the persons responsible are liable for damages. The law does not require that the wrongful act be directed at the decedent. It is sufficient that a wrongful act occurred and that the decedent died as a result thereof.

Suing Under the False Claims Act

If the death resulted from fraud against the government, victims have another avenue of recourse. 31 U.S.C. §§ 3729-3733, more commonly known as the False Claims Act of 1863, prohibits a long list of conduct committed in furtherance of defrauding the federal government. It is unlawful, among other things, to present fraudulent claims for payment or make false statements in connection with any claims made to the federal government. Billing for unnecessary procedures or defrauding the government in sales of equipment that is claimed to meet certain specifications but does not meet those specifications is a federal crime.

The False Claims Act of 1963 creates a private right of action; any citizen can sue the offending parties for the unlawful conduct. Parties may initiate a claim under the False Claims Act by filing a qui tam action and serving it upon the U.S. Attorney General as well as the local U.S. Attorney. The government has 60 days to investigate the claim. If the government decides to pursue the claim, the plaintiff’s involvement ends and the government prosecutes the case. If the government declines to pursue the case, the plaintiff may still pursue the case privately on behalf of the government.

This opens up another avenue of recovery for victims and their families. Wrongful death lawsuits normally limit damages to expected future income; proving such damages can be difficult and a large damage award may be reduced upon appeal due to the speculative nature of such awards. In contrast, a successful qui tam action will result in a percentage of the recovery being awarded to the original plaintiff. The False Claims Act allows for recovery of treble damages and disgorgement of profits; as a result, the awards from such claims can be high. If the government takes over the case, the plaintiff may receive 15 percent of the settlement or award; if the plaintiff litigates the matter and obtains a settlement or judgment, the plaintiff may be entitled to as much as 30 percent of the damages.

Deterring future conduct is as important as obtaining compensation for a lost friend or family member. If your family member underwent unnecessary procedures or was victimized by defective products as a result of ongoing fraud against the federal government, it is likely that your family member was not the only victim. If nothing is done, your family member may not be the last. Seek legal counsel as soon as possible; consult a tort lawyer for a wrongful death claim and a whistleblower attorney to discuss the feasibility of pursuing a claim under the False Claims Act.

Valerie Stout Cyrus is a freelance writer who frequently researches claims of fraud against the government. She has found that the attorneys at the whistleblower law firm of Goldberg Kohn Ltd, at www.whistleblowersattorneys.com, are experienced in securing judgments against entities that commit fraud against the government.

Photo credit: http://www.flickr.com/photos/20692718@N00/4038317140/

Categories
Divorce Law Family Law

5 Things to Consider When Choosing a Divorce Attorney

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

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

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

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

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

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

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

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

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

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

5. Did the attorney promise specific results?

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

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

Categories
Family Law

Five Tips for Divorced Dads from a Family Lawyer

Divorce is hard enough. Your life is turned upside down, and you probably struggle with feelings of anger, guilt, betrayal, or failure. But as every divorced parent can tell you, the turmoil is 10 times greater when you have kids. Fortunately, many divorced couples are still able to communicate well, and they can come to a decision regarding custody without a lot of anger and fighting. But even when you share custody, it is hard to know how to approach your new parenting role. The task is especially difficult for fathers, who tend to spend less time with their kids, even in joint custody arrangements. If you are a father trying to figure out how to be a good dad with joint custody, read on for five tips for handling your new role.

  1. Don’t talk badly about your ex. Talking negatively about your children’s mother will only backfire in the long run. It forces your kids to choose sides, and you cannot always guarantee that the side they choose will be yours. It also creates an atmosphere of disrespect – after all, if they don’t need to respect their mother, why should they respect you? Finally, it can foster misbehavior. If you are constantly questioning their mother’s actions, your kids may not feel that they need to obey her.
  2. Communicate. The better relationship you have with your ex, the easier this will be. As hard as it may be, forcing yourself to be civil and to control your emotions when talking to her will make your life easier, and it will certainly be better for your kids. Let their mother know about any scheduling issues or activities to which your kids are committed. In addition, you should be on the same page regarding discipline and responsibilities. For example, if your child is expected to do their own laundry at your house, it’s best if they’re expected to do the same at their mom’s. Similarly, if they are not permitted to watch PG-13 movies or if they have a specific bedtime with you, the kids will be better off if they have the same expectations with mom.
  3. Make the kids your top priority. Scheduling can be very difficult when you share custody. There will be times when you have the kids that are very inconvenient for you. But it is of utmost importance that you put their needs and their schedules ahead of yours, especially since you don’t get to see them every day. If you leave them with a babysitter every weekend so you can go out, or if you stay late at the office every night, they will feel that they are not important to you and will become resentful. Not only does this harm your relationship, it can breed a serious discipline problem, as well.
  4. Get professional help. Going through the pain of a divorce and the ensuing changes can take a huge emotional toll. You may not even realize how much sadness or guilt you feel, but kids are incredibly attuned to emotions and can easily pick them up. Talking to a counselor can help you to organize your thoughts, confront your emotions, and deal with them in a healthy way. A counselor can also help your kids, who will be struggling with the pain of parental separation. Going through counseling together can be a good way of strengthening your relationship.
  5. Don’t worry so much about labels. It’s very easy to get caught in the trap of worrying whether you are a “good father” or a “bad father.” The fact is, you’re a father, and if you are trying your hardest to do what is best for your kids, that’s all that you can ask of yourself. As Kaleb “Coach KJ” Hill says on Co Parenting 101, “We are here to teach our child to think, not how to think. We are there to provide a sense of security and adequate amounts of love while guiding them. Personally, I don’t get caught up in the ‘good’ parent label because it’s relative. I gauge my success by the questions my son asks me, the gleam in his eyes, and smile that’s always on his face when he sees me.”

Dealing with the aftermath of a divorce and a child custody decision is never easy. But by following these five tips, you can make the following years easier and ensure that your kids grow up happy and with a stable, loving relationship with both you and your ex.