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
Children

Preparation for a Future in Law

The idea of law school may be an exciting and frightening thought for many soon-to-be high school graduates. Many see it as a time to enhance one’s ability to debate, a school for the intellectually elite, or a pathway to a high-paying salary and luxurious lifestyle. The decision to apply for and enroll in law school should be heavily weighed, and certain considerations should be noted before any actions are taken. Below are items any parent should consider and discuss with their sons and daughters before taking any further steps to becoming a lawyer. The sooner you and your child figure out the answers to these questions, the more prepared everyone can be for a successful path to a future in law.

What Classes Should You Take In College?

Law school, like any other professional school, requires applicants and entrants to have previously completed a Bachelor’s degree from an accredited institution. While many schools state that no one major or academic path is the best preparation for the study of law, some classes will act as a solid foundation.

In college, any class that includes the study of law will help – this can include business law, environmental law, and international law, among others. Obtaining knowledge of international affairs and political history can also be extremely beneficial. Taking a writing class of any kind is also beneficial and highly recommended as it is a great way to prepare making cohesive arguments and fine-tune your critical thinking skills.

Why Do You Want to Study the Law?

If, after you have taken specific law classes during your undergraduate studies, you find yourself particularly passionate about a specific area of the law, it is wise to pursue the endeavor. Many students venture into law as a result of their desire to help others, while others desire to a career in politics and seek to learn the many aspects regarding the law and how it governs the country.

A degree in law is a degree that includes a plethora of subjects and avenues. It is wise to choose the path that you are passionate about.

Why Do You Want to Be a Lawyer?

This is the biggest question of all. Many people believe that being a lawyer is very similar to how it is portrayed by television programs and movies – big name attorneys winning high-profile cases with quips and well placed points.

While this may be the case with some attorneys, the majority of those who practice law find that it involves a great deal of research and communicating with clients and law officials. While there will be times that attorneys represent their clients before a judge, the majority of a lawyers work is done in their office reading through case files. The amount of studying done by a law student will not end when they graduate from law school.

Law students have the ability to gain an intimate knowledge of one of the most important institutions in the world. They also learn to think critically, and develop connections with peers that often last a lifetime. Lawyers have the ability to advocate for what they believe in. Before you attend or apply to law school, consider all of the possibilities in order to be fully informed as you take your next step in your education.

 

This article was contributed by Sandy Wallace, college student, tech geek and aspiring lawyer. Having a tablet at school can make life a lot easier, but keeping it protected is no easy task, which is why Sandy recommends Kensington iPad 3 cases, available at kensington.com.

Categories
Divorce Law

Financial Settlements on Divorce

Family lawyers rejoiced recently as a landmark decision from the Supreme Court gave justification to piece the corporate veil in relation to financial settlements on divorce.

The case arised after a divorce case between oil trader and his wife took place after a 20-year marriage ended. The assets of the marriage totaled a huge £37.5 million and the wife was rewarded almost half at £17.5 million at the High Court in 2011. The husband in the case, a successful business owner, was ordered to transfer a number of properties from his business over to his ex-wife as part of the divorce settlement. However the properties belonged to his companies and were not his outright therefore refused to transfer them and appealed against the Order.

The appeal focused on whether the Court had the power to transfer 7 of the properties over to the wife with the argument that they belonged to his companies and did not in fact belong to him. The High Court Judge overturned on the basis of the Court appeal after agreeing that the properties did belong to the companies and not to the husband, even though the husband owned almost 100% of the business of which the properties belonged to.

The Court of Appeal went further to assess whether the treating of assets of companies owned by one party to a marriage should be available for distribution between the parties during a divorce settlement.

One judge said,  “why should family justice be regarded as different from any other sort of justice…”

Family Lawyers across the country such as leading Canterbury solicitors Whitehead Monckton and EMD family solicitors in Kent have eagerly anticipated the Supreme Courts decision and in a complete U-turn, it came to light that the 7 properties in question were bought in the companies name but were in fact purchased using the husband’s personal money. Therefore orders could be made against them in Family Court. This Landmark decision will be a huge consolation to future separating spouses who struggle to obtain fair financial agreements during a divorce settlement when the majority of the assets are owned within company structures.

 

Whitehead Monckton is one of the leading law firms in Kent can offer professional guidance and advice on all divorce and separation matters and provide expert divorce solicitors in Canterbury with a wealth of financial experience behind them. Visit the Whitehead Monckton website to find out more about their expertise or visit them in one of their three locations in Kent: Canterbury, Maidstone and Tenterden.

 

(Please note that the case discussed is not a Whitehead Monckton or EMD Law case.)

Categories
Divorce Law Marriage Pre-nuptial Agreements Separation Law

Understanding What Happens to Your Money in Divorce Proceedings

Rupert Murdoch has recently filed for divorce from Wendi Deng, his third wife. Even though it is unknown what caused the marriage of 14 years to end, people have speculated for months about the relationship of the couple. Deng, who is Chinese-born and Yale-educated, is accomplished on her own before ever marrying Murdoch, but that didn’t stop people from dubbing her as a gold digger.

Since the 82-year-old Murdoch runs a powerful conglomerate in terms of media, many people wonder what is going to come of his fortune. When you consider he has 20th Century Fox, Sky News Service, Fox Television, the Wall Street Journal, Harper Collins Publishing and many others, you can easily see just how much he is worth financially. Even though Deng stayed out of the public eye for much of their marriage, everyone wonders what the legal precedent is now that the divorce is underway.Shortly after they wed, Murdoch announced that Deng was going to step down from her role at News Corp. in Hong Kong. She never fully left the media world. She would attend meetings with Murdoch and his son to make sure everything went smoothly. During their marriage, she had two girls with Murdoch. He has four other children from his other two marriages.

According to her Yale profile, she is the co-founder of Big Feet Productions, which is an independent studio based in East London making games and applications for Apple. The divorce would effectively end Deng and Murdoch’s union and set a battle into motion for how much of the fortune she and the children are going to receive. His recent fortune was estimated at more than $11 billion. The showdown comes at a bad time for News Corp. They recently approved plans to split operations between two publicly traded companies.

Since Murdoch is the largest shareholder in the company, he will be the chairman of the two new enterprises. It is not yet known whether there was a prenuptial agreement signed between Deng and Murdoch before they were married. Even if there is, no one knows where it was filed at. Most people assume there was documentation filed to protect Murdoch’s fortune, especially when there was so much to lose.

Depending upon where the paperwork was filed, individual states will choose whether the terms are unfair or unconscionable and proceed with upholding the prenuptial agreement or making their own amendments to the document. Other countries may have their own set of rules and restrictions, but in the United States, things would be handled in the aforementioned manner.

A prenuptial agreement can do a lot for protecting the best interest of the parties involved, but the court and legal system will determine whether they are going to overturn the agreement or uphold it. In the end, lawyers and the legal system are the ones going to make the arguments and final decisions on what is going to happen. A trained lawyer will be able to fight in the best interest of the parties involved.

Categories
Tax

First Time Filing Jointly? Tax Law Information You Should Know

(US law & generally)

First Time Filing Jointly? Tax Information You Should Know

Congratulations! You’re married. Now you’ve combined homes, kids and in-laws. Should you combine your tax returns as well? Marriage can save you money on your taxes, or you could end up penalized by filing a joint return. Read on for the benefits of filing jointly for the first time.

Can You File Jointly?

You must have been married on the last day of the tax year to be married in the eyes of the IRS, whether you’re declaring that you’re married filing jointly or married filing separately. You have to wait for the end of the tax year in which you got hitched to file your first joint tax return.

Should You File Jointly?

If you want to file as married filing separately, the IRS does not allow you to claim certain deductions and credits. If you want to take deductions for student loan interest, tuition and fees, the earned income deduction or education tax credits, you are better off filing jointly. Also, even if you each file separate tax returns, you both have to make the same choice between the standard deduction and itemizing your deductions, regardless of which option works better for each spouse.

Prior Debts

You could decide to file separately to keep any debts from before your marriage from affecting your new spouse. Any tax liens that have been imposed for unpaid child support, student loans or previous tax liability can be deducted from your tax refund. To keep tax liens from costing your spouse money, keep your returns separate until they’re paid off. If you still wish to file jointly, your spouse can file IRS form 8379, the Injured Spouse Allocation. This keeps the debt-free spouse from being penalized on their part of the return and allows you to take the deductions and credits available to joint filers. If you have any questions or concerns, it may be a good idea to contact an IRS lawyer that can help you determine the best way to file for your unique situation.

Issues for Stepparents

The question often comes up as to whether a stepparent can claim a stepchild as a dependent. If your spouse is legally able to claim her child as a dependent under her divorce settlement, you will also claim that child if you file jointly. The stepchild must be under age 19, under age 24 and a full-time student, or permanently and completely disabled. In addition, the child must have lived with you for more than 50 percent of the tax year and must have provided less than 50 percent of his or her own support. In addition, your spouse’s divorce agreement could give her the legal right to claim the child as a dependent regardless of whether the child resided with you for more than half the year.

Many factors go into the decision of whether or not to file jointly as a newly married couple. The biggest question may be, simply, which way saves you the most money. Depending on your incomes, filing jointly can make a lot of sense. On the other hand, the United States’ progressive tax rates can hit you with a huge “marriage penalty.” The best way to figure out the answer is to prepare your taxes both ways, jointly and separately, and file the version that gives you the lowest overall taxes.

Melanie Fleury is a married taxpayer that has filed both jointly and separately. She has found that hiring an IRS lawyer or tax service like Instant Tax Solutions is a great way to ensure that your taxes are being done properly and in the way that will benefit both you and your new spouse.

Categories
Uncategorized

How Your DUI May Affect Your Case For Child Custody

Driving under the influence is a serious crime and is usually punished severely throughout the United States. The consequences that a person faces can span from a loss of license to substantial jail time. Fortunately, many people are able to live with these repercussions, but this isn’t the case for everyone. Individuals involved in child custody cases, for instance, can face serious difficulties due to a prior DUI.

Direct Effects of a DUI

There is no set rule that says a DUI will affect a child custody case, but in reality, it could turn out to be a huge factor. A judge presiding over a custodial case is going to look at potential red flags when making their decision. A DUI conviction, especially a recent one, can stand out as one of these red flags. The judge will likely believe that the conviction shows a certain lack of maturity, and this is never good when fighting for rights to one’s child.

Additionally, the fact that an individual has spent time in jail can also be detrimental. Not everyone will go to jail after a DUI conviction, but it’s a definite possibility. According to group of Orlando DUI attorneys in Florida’s Orange County, for instance, a person convicted of DUI can be sentenced to up to nine months in jail on their first conviction. This will obviously negatively affect an individual if they’re incarcerated during custody hearings, but even having the record will look bad.

Those who have had multiple DUI convictions will face even more difficulties during a child custody case. Multiple DUIs essentially show a reckless disregard of a state and locality’s laws. A judge will not look fondly upon this, and additionally, they may believe that the individual places alcohol over their own, and potentially even their child’s, well-being.

Other Difficulties

Unfortunately, it’s not only the criminal consequences that can affect a child custody case. A driver’s license suspension, for instance, is an administrative punishment. This repercussion can stop a person from working due to a lack of transportation. Sadly, a judge is more likely to deny a person the custodial rights that they’re seeking if they’re unable to work for a living wage.

Some people think they can avoid the aforementioned situation if they work from home or have others transport them to and from work. It’s important to note, however, that the license suspension can still have negative effects on a child custody case. The simple inability to drive may be viewed as a reason to deny custody since the parent will be unable to drive their child to essential places like school and doctor’s appointments.

Individuals who don’t have families face a difficult enough time when convicted of a DUI, but those facing child custody cases are in an especially difficult spot. This is why it’s so essential for an individual to fight a DUI conviction as hard as they possibly can, and this includes finding legal help to avoid having a blemish on a criminal record. A failed breathalyzer or DUI charge is never an automatic conviction, but without legal help, it may likely seem that way.


Melanie Fleury lived in Orlando and has seen many DUI checkpoints. Orlando DUI attorneys Katz & Phillips know that every DUI case is unique. By having an attorney to help you mitigate your circumstances, you may be able to avoid the many penalties that can be laid down on a DUI offense.

Categories
Child Support Children Separation Law

How to Seek Child Support during a Separation

(U.S. Law and Generally) When your spouse leaves you and your children, it’s not long until you feel the financial pinch in your pocketbook. In your new role as a single parent, taking care of your children and your household expenses on a single paycheck soon becomes challenging, especially since you no longer have your spouse to help you financially.

How to Receive Child Support

If you have asked for money for your children and your spouse refused to help out, you can get a court to order your spouse to pay child support while you are separated. Here are steps you can take to start receiving child support:

1. Locate the OCSE in your area. In some states, the Office of Child Support Enforcement (OCSE) is called the Friend of the Court (FOC) and is located in the county courthouse. Find your local OCSE by conducting an Internet search of your city or state or call the clerk’s office of your local courthouse.

2. Complete an application. OCSE has applications for child support online that you can print out and complete prior to meeting with a caseworker.

3. Schedule an appointment. The OCSE takes new cases by appointment, but some offices allow “walk-ins.” If you visit the office as a walk-in, be prepared to wait since most offices are very busy. Be prepared to pay a fee since OCSE’s charge an annual service fee to the custodial parent to open a child support case.

4. Bring relevant information. Your case worker will need information such as your spouse’s address, telephone number, employer’s name, annual income and type of vehicle he or she drives. This information will be used to locate your spouse should he or she fail to either receive or respond to child support papers served on him or her. Child support payments are usually collected through the non-custodial parent’s paycheck. You will also be asked to provide information such as your employer’s name, health insurance information and whether you have received child support in the past. The case worker will also give you other documents to complete.

5. Attend your court hearing. Your case worker will take you through the child support process, which includes filing your documents with the court, serving your spouse with a copy of the papers and scheduling a court hearing. Your spouse will have an opportunity to respond to the papers you filed as well as attend the court hearing.

Consider getting Legal Advice

Filing for help from an absent parent, whether it’s California or New Hampshire child support, is a lengthy process and can become complicated, particularly if your spouse objects to paying support. If your spouse had a larger income and carried health benefits for the family, consider filing for a legal separation rather than a divorce, at least for the time being. There are several financial benefits to getting a legal separation for both of you, but this is something that you should discuss with a family lawyer.

An attorney experienced in family law will get your OCSE case moving along while advising you of the legal separation process. The ultimate decision to file for a legal separation is up to you, but in the meantime, your attorney can relieve your financial pressure by getting court-ordered support from you spouse so that you can better provide for your children.

Mother of two and author, Molly Pearce knows the challenges that single parenting presents. She shares this info in the hopes that it can simplify the child support process for readers. New Hampshire child support lawyers, Tenn and Tenn, P.A., also hope to make the seperation and divorce process easier by providing knowledgeable and experienced representation to families in need.

Categories
Divorce Law

Gray divorce is increasing

Over the past couple of decades, divorce rates among people over 50 years old have doubled in the US.  When individuals who are middle-aged or older get divorced, sometimes it’s a step they planned for years; they’ve waited, for instance, for their children to leave the house first.  In other cases, they never anticipated that their marriages would end and that they’d need to make major adjustments to their lives at a point when they thought they’d have more stability. In any case, open attitudes about divorce, and frequent coverage in the media have created a more permissive environment for divorce. Ages ago people expected to go to their grave within the same marriage. Now it is more acceptable to start a new life at any age.

A ‘gray divorce,’ such as it’s sometimes called, poses its own unique challenges.  One major issue that comes up is how to divide the assets that the couple has built up together over the years.  Whereas younger people who get divorced sometimes don’t even own a home or have much in the way of savings, it’s more typical for an older and established couple to have their own home, more substantial savings and a wider variety of accounts, and funds set aside for retirement and medical expenses.  What are the criteria for an equitable split of assets? Which assets are less desirable? These questions will need to be assessed on a case-by-case basis by expert lawyers, to be sure that both parties are receiving fair treatment. Another issue is directly related to the age of the divorcing couple; they do not have time to correct for major mistakes in a division of assets.

Other issues involve changing the will and making other alterations to estate planning.  For instance, one spouse may have designated the other to make important life-or-death medical decisions for them in the event that they’re mentally incapacitated; with the divorce, they may want to give someone else these powers, such as an adult child.  Beneficiaries listed in a will could also change, and you’d need to revise your estate planning in light of the assets you’re left with after the divorce.

Other adjustments may be social. You may feel cut adrift from the circle of friends that you shared with your spouse.  If you need to move to a new home, you may feel as if your life is starting over again.  And if you’re unused to living alone, it may take you time to adjust to doing various things by yourself.  One important consideration to make is that if you have little experience working on personal finances, and tended to leave such matters to your spouse, you’ll need to learn quickly to manage them so that you don’t get taken advantage of.

When undergoing a divorce in the later years of your life, be sure to have a good attorney on your side, so that your best interests will be met.  You don’t want to harm yourself, and ruin your chances of stability in the golden years of your life, by agreeing to a divorce settlement that’s unfavorable to you.

 

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.

 

Categories
Adoption

Adoption Survey shows children over 5 years take a year longer to be adopted

The Department of Education has published a survey which shows that children over 5 take much longer to be adopted than children under the age of 5.

The Adoption Survey (released quarterly by the Department of Education) provides analysis of data which covers the adoption process in general, the characteristics of children during the adoption process and analysis of the progression of children through the adoption system at any given stage.

The statistics showed the following (from Quarter 4 of 2011-12 to Quarter 3 of 2012-13):

  • There was a decrease of 18% in the number of decisions to adopt children but it was found – on the positive side – that there was an increase of 13% in the number of matches and an increase of 15% in the number of placements
  • On average a longer a time is taken to adopt older children, disabled children, children from black and minority ethnic groups and sibling groups.
  • It takes over a year (13 months) longer for a child aged 5 or over to be adopted, as compared to the time that it takes for a child under 5 to be adopted
  • It takes over 2 months longer for a child to be adopted who is disabled, part of a sibling group or from a black and minority ethnic group
  • The time taken for a child to be placed with adoptive parents dropped by 7% to approx 43 days
  • There was a 4% increase in the number of applications to be adopters and the number of approvals for adopters has increased by 25%
  • There has been an overall increase in the number of enquiries to adopt children (a 10% increase)

The survey also showed that there was currently approximately 5,000 children involved in some way in the adoption process from quarter 4 of 2011-12 to quarter 3 of 2012-13. Across the period, 2,050 new “placement orders” (i.e. a decision to adopt) were made, 1,750 children were matched with prospective adopters and 1,700 were placed with an adoptive family.

Information from the quarterly survey also suggested that children aged under 5 years old take approximately 1 year and 8 months to be placed with an adoptive family, whereas children aged 5 or over take on average 2 years and 9 months to be placed with an adoptive family. This survey also found that there had been a 10% decrease over the entire period of the survey in the number of older children being placed with an adoptive family. However, the survey urged caution with this last statistic as there were less than 100 older children being placed each quarter and therefore the numbers could be subject to variance.

Redmans Solicitors are employment solicitors who offer employment law advice to employees and employers

Categories
Family Law

Same Sex Marriage Bill receives Royal Assent

The Same Sex Marriage Bill – which has been working its way through Parliament for the last year – received Royal Assent last Wednesday (17 July 2013), officially making it law.

The new measure became law on 17 July 2013, allowing same sex couples to get married for the first time. There was cross-party support for the Bill, with Conservative, Liberal Democrat and Labour MPs backing the proposal. Under the terms of the Bill, religious organisations in England and Wales are to be given the option to “opt in” to offering weddings to same-sex couples. However, the Church of England and the Church in Wales are banned from opting in.

The legislation – described by the Telegraph as “one of the most radical pieces of social legislation of [Queen Elizabeth’s] reign” has been marred by controversy during its passage through Parliament, with a number of groups protesting against the change that it marks to what they see as the understanding of marriage as solely between a  man and a woman. For example, the Evangelical Alliance criticised the redefinition of marriage as defined by “consumer demands and political expediency”. However, many groups responded positively to the news, with the Roman Catholic Church describing it as a “watershed” and that it marked a “profound social change”. There is expected to be a swathe of new work for family law solicitors after the passing of the Bill.

Maria Miller, the Equalities Minister, stated that marriage would remain the “bedrock” of society and that the passing of the Bill “demonstrates the importance we attach to be able to live freely. It says so much about the society that we are and the society that we want to live in.”

Conservative MP Gerald Howarth – an MP who had voted against the legislation – reacted negatively to the passing of the Bill, stating that it was: “astonishing that a bill for which there is absolutely no mandate, against which a majority of Conservatives voted, has been bulldozed through both Houses”. He also added “I think the government should think very carefully in future if they want the support of these benches. Offending large swathes of the Conservative Party is not a good way of going about it.”

Paul Parker, recording clerk for the Quakers, commented on the news: “It’s wonderful to see same-sex marriage achieve legal recognition. Quakers see the light of God in everyone so we respect the inherent worth of each individual and each loving relationship.”

Media outlets report that the first same sex wedding could take place as early as summer 2014.

Direct 2 Lawyers offer expert advice from employment law solicitors and settlement agreement solicitors

Categories
Child Custody Divorce Law Family Law

Factors That Will Determine The Outcome Of A Custody Battle

Child custody laws are meant to provide a legal structure to govern relationships between divorced parents and their children. Preferably, divorced parents are supposed to work together to have a cordial agreement to have shared custody, but this if often not possible due to resentment between the divorced spouses who tend to drag their children in the divorce and marital disputes. This raises the need for you to hire a divorce attorney or a child custody lawyer to assist you in your child custody battle.

The best interest of the child is the major focus in determination of child custody. Thus, every aspect of both parents life, both past and present, is put under scrutiny so as to determine which parent is most suited for child custody.

Here are some of the factors that will determine the outcome of a custody battle:

Stability

This is a general term referring to different aspects of an individual’s life. You need to have your life together for you to be awarded sole custody of the child. The factors to be considered here include your ability to provide safe home, environment and social setting for the children, your employment status and financial security, criminal history and psychological stability (history of substance abuse, mental illness, and child neglect or abuse). Thus, you must prove in court that you are more stable than your partner.
Relationship With The Children

The court knows that quite often, spouses file for full custody of the child just to hurt their ex without necessarily having developed a relationship with the children. Thus, it is important to leave out personal vendettas out child custody cases because the court will investigate whether you have strong ties with your kids. Thus, the court is likely to award custody to the parent with stronger emotional ties with the children.
The motive

Just as mentioned earlier, some parents may seek custody just to get back at their spouses. Though it’s normal for parents to want to be with their kids, you must prove to the court that it is in the child’s best interest to be awarded sole custody. For instance, a father asking for sole custody of children less than 5 years does not consider that this can emotionally hurt them or can create an emotional barrier with their mother. Thus, the court is likely to award custody to the parent who can prove that his or her motive is in the best interest of the children.
The wishes of the child or children

The child’s wishes can also be taken into consideration in determining custody cases. Nonetheless, this factor is greatly dependent on the age of the child where the preference of children below 6 years old may not hold as much weight in court as the preference of children above 12 years.
Other factors that will determine the outcome of a custody battle includes:

* The health of the parents and the child’s age, sex and medical needs
* Impact of changing living arrangements to the child or children
* Quality of life, including health, education and social life while living with one parent
* Effect on the child’s established lifestyle which includes school, home, church etc.
Categories
Child Custody Family Law

Is It Possible To Win a Child Custody Battle Without a Lawyer?

(Guest family law blog post based on family law practice in the US and generally; Views are those of the author and not necessarily those of FamilyBlawg)

Are you wondering is it possible to win a child custody battle without a lawyer? Well, the good news is that you can get some respite from the struggles involved in child custody proceeding. This is because you can embark such a proceeding without legal representation.

Here’s a list of 5 Easy Steps To Win A Child Custody Battle Without A Lawyer:

Step 1:
Go to a clerk in the court and obtain a motion for child custody or modifying a child custody form. The court clerks will typically maintain these forms, required to address a range of custody issues. Some locations allow you to download relevant forms available on the court’s website. Indicate to the court that that the existing custody arrangement is no longer serving the best interest of the child. Complete the motion for modifying the child custody form. Take care to follow all the instructions given by the court clerk.

Step 2:
Study your state’s existing child custody laws. You can easily undertake this by accessing the legislature website of your state. Additionally, you can visit a Legal Aid office or law library, where you could read about the relevant legal provisions, find forms or copies of motions, ask questions and understand more about successful child custody cases.

Step 3:
Keep a detailed record of all calls and visits with your child. If you have issues with the other parent not allowing you visits or late visits of the other parent, write them down to use during the hearing. Participate in all social, psychological and home evaluations. This will facilitate your case in moving forward quickly. It will indicate to the judge that you are co-operating. You could give a specific example if there is a change in circumstance, in order to support your request to change custody. For instance, if the custodial parent has developed a problem related to substance abuse, it can serve as a sufficient status quo alteration in the given situation.

Step 4:
Obtain your hearing date either from an administrative assistant for the judge assigned to your case or from a clerk of the court. On the day of the scheduled hearing, present all the evidences to support your request for child custody or to support the requested modification of an existing custody arrangement. Learn all the local court procedures and rules. Every court has their procedures and rules for custody cases. Find the procedures and rules followed by your court.

Step 5:
Prepare for the court hearing a week in advance. Gather all the important evidence, motions, exhibits, rules and laws. Make a short summary to be read aloud in the court, favoring your case. Mark all the important key points for you to remember. Reach on time to attend your hearing. Carry all the notes, exhibits, responses and your evidences supporting your child custody application. Dress appropriately, preferably in a business attire. Address the judge appropriately, as “Your Honor,” speak clearly and follow all the court rules.

Remember, the decision to obtain or modify child custody, is an emotionally challenging and legally complex procedure, under the family law proceedings. Prior to taking any action, you must correctly comprehend the essential elements associated with an existing order for child support without undertaking any legal assistance.

Categories
Adoption Children Family Law

The Adoption Process: Will Your DUI Conviction Affect The Outcome?

Lourdie Adoption Ceremony August 11, 20104

A DUI conviction can have repercussions that go beyond the stigma of having a criminal record. For instance, a drunk driving charge can affect whether a person can continue on with school, get employment, make purchases that require loans like real estate and vehicles, and even rent an apartment. Another thing that a DUI can affect is the ability to adopt a child since quite a few investigating agencies use DUI convictions against parties desiring to adopt. Below are some steps that individuals may take in order to help their cause with adoption authorities.

First – Hire a DUI lawyer

If you are considering adopting a child and you have a DUI conviction, a DUI attorney can assist you with several key steps that may make you a more desirable candidate for adopting. Katz & Phillips, a law firm in Tampa, offers this about defense against DUIs, “…you really might have been perfectly fine to drive, but something went wrong during the arrest process to convince the authorities otherwise.” A critical defense such as this could be the key to getting a DUI conviction expunged from your criminal record. Your lawyer can assist with the following steps:

1. Gather court and Department of Motor Vehicles records to review exactly what anyone who is performing a basic background check will see.

2. Ask a DUI attorney if an appeal is possible on a conviction. While this may not entirely clear a record, it could still be beneficial.

3. Consider having a DUI conviction expunged from the criminal record. While it is no guarantee, this process can help other things besides adoptions, so it is worth the time and effort. Contrary to popular belief, DUI convictions do not automatically clear from a criminal record once seven years have passed. Unless it is expunged, the conviction will appear on most any criminal background check. However, keep in mind that felony DUI convictions are rarely expunged. Also, some states disallow expunging misdemeanors as well.

Ensure that the court record as well as the DMV record is cleared. Otherwise, there is a risk that it will still show up in a background check. Also, while the conviction may not appear on a background check, it may surface during the course of a more thorough investigation. Because adoption agencies operate under more stringent guidelines, they may have access to this information in the same way that a police department or the FBI would. This is because once a DUI is on a record, law enforcement can become aware of it even after expungement when they are checking for prior arrests and convictions.

4. Have the court record examined thoroughly as well as the DMV record to ensure that the conviction was actually expunged.

5. Arrange to complete a homestudy program with regard to the DUI. This will help convince an adoption agency that responsibility was taken for the situation to increase the possibility for a successful adoption.

6. Consult with an adoption lawyer and explain the entire situation so that he or she may recommend how best to proceed.

7. Try speaking with several adoption agencies about the situation. While some agencies require several years after a DUI before they will consider an application, others may have different guidelines to deal with the situation.

8. Consider Disclosing DUI Information because, in the end, if a DUI arrest is not disclosed and is later discovered, an adoption agency may have the right to deny the application automatically. However, if it is explained that the matter was expunged from the record, there could be a possibility that the agency will consider the adoption application.

Both DUI convictions and adoption are complex processes. Therefore, regardless of which avenue is pursued, it is best to first clear the DMV and court records as well as possible with the help of a DUI lawyer. Then concentrate on the adoption process with an expert family lawyer guiding you through the process.

Photo credit: http://www.flickr.com/photos/stevendepolo/4886622275/

Categories
Divorce Law Family Law Finance Marriage

The Divorce Process: Where to Begin

Most couples do not begin their marriages with the anticipation of ever getting divorced. However, as statistics consistently show, close to half of all marriages end in divorce today. When a husband or wife decides to end his or her marriage, that individual may wonder what steps to take and how to begin the process. The process to get a divorce may take some time; however, following these steps can ensure that each party’s best interests are addressed and that the matter is settled as fairly as possible.

Start Saving Money

Because most couples share bank accounts, a husband or wife may not have immediate access to the funds needed to file for divorce. If possible, a person should try to set aside money out of each paycheck and save these funds for the divorce proceedings. It may take a few months to save enough money to file; however, without the needed money, people may not be able to file, especially if they do not qualify for free legal services through the state or social organizations.

Retain a Good Lawyer

People can certainly file for divorce on their own at the courthouse. However, in most cases, this idea is not advisable. A divorce lawyer is trained to advocate for clients and to ensure that each petitioner’s interests are protected. An attorney can help a client go through what is referred to as a discovery process where the couple’s assets are identified and the reasons for the divorce are solidified. Through his or her divorce attorney, a person can work toward a mutual agreement with the other spouse without having to go to trial. If, however, an agreement on the matter cannot be reached, a person can be well served by having an attorney by his or her side as the case goes through the trial process.

Finding a good divorce lawyer can be a relatively hassle-free process if people take several things into mind. With the Internet now a popular referral tool, people can search online and find experienced attorneys in their area. For example, a search would be done online for an Orlando divorce lawyer for plaintiffs in the central Florida area, to obtain a list of local lawyers knowledgeable in divorce law. They can consider previous clients’ online recommendations, as well as ask friends and family members for advice. Clients can also discover if an attorney can help by going to an initial consultation. Retaining a lawyer for the divorce can make this process less traumatic and difficult.

Make Lifestyle Adjustments as Necessary

As they approach a new life path, people may need to adjust their lifestyles accordingly. If a person does not have a job, for example, that individual could be urged to find employment and begin working before the divorce is filed. Having an independent income can make adjusting to post-divorce life easier. Likewise, if a person is under-employed or does not have benefits like life and medical insurance, that individual may be advised to look for a higher paying job and retain these benefits as soon as possible. People going through the divorce process must learn to rely on themselves rather than someone else for their well-being. Adjusting their lifestyle and planning ahead can ensure that they successfully rebuild their lives after they are divorced.

Knowing how to begin divorce proceedings can empower people who are no longer happy being married. Retaining experienced legal counsel and allowing a lawyer to advocate for them in court can be the most crucial aspect of the divorce process. An attorney can help a person come out of the divorce with their best interests intact.

Lisa Coleman encourages employing experienced legal counsel during the process of a divorce while handling the emotional transition into an adjusted lifestyle. Katz & Phillips, P.A., a client-focused divorce firm, is experienced in all aspects of divorce law and can represent and counsel a client through their divorce proceedings.

Categories
Children Uncategorized

Cyber Crime And Children: What Every Parent Should Know

Blue Glow

Cyber Crime And Children: What Every Parent Should Know

Reports of cyber crimes regularly appear across the airwaves. For parents, these crimes can be particularly troubling, since so many involve children. As such, parent organizations, teachers, government, industry and non-profits have turned their attention toward making the online universe more safe for children. Safeguarding Children Here are some safety tips for parents:

  • Every parent who allows their child to be online should ensure that proper security guards and firewalls are in place at all times. Blocking inappropriate content using software designed for this purpose is a good method, however, it is still necessary to monitor a child’s activities online.
  • Parents should have all passwords and access to the computers that their kids use. Computers should also be checked on a regular basis to ensure that there are no inappropriate sites being visited or attempts by strangers to contact them. Strangers attempting to make contact with children through the Internet are in fact committing white collar crimes. As noted by attorney Kevin W Devore, “Although commonly referred to as ‘white collar crimes,’ these types of cases actually take on a variety of forms and concern a significant array of different subject matters.”
  • Kids should be educated about how to use the computer properly. Teach them about online safety by pointing out that there are criminals online who know how to get their attention. Explain how this could occur, how dangerous this is and that if they get a message from someone they don’t know, they should not answer it, and should tell an adult immediately.
  • One of the more common Internet crimes against children involves engaging them in conversation that leads to abduction and abuse. Children should refrain from entering chat rooms and chatting with people they do not know. They should also notify an adult immediately any time that something doesn’t look quite right.

Parents should report all instances of suspected cyber crime to the Internet Crime Complaint Center (IC3) either online or by calling 1-800-CALLFBI as soon as possible. Be sure to first gather all of the pertinent information such as the time, online handles, websites and other particulars about the incident.

Technology

In order to safeguard kids online, parents need to know about all of the latest technology. Otherwise, they won’t know what to look for. This is the only way to check in on kids to see what they are doing and keep them safe and secure. Ensure that all privacy settings are set to the highest level on the computer and social media sites. Monitor all web pages and groups that kids belong to on a regular basis. Before allowing them to join any group, ensure that it is safe for them to do so. Let them know that even if they think they know someone, they will need parental permission to start an online friendship with anyone.

Parental Guidance

In addition to safeguarding kids online, parents must also be aware of the fact that children can also abuse Internet privileges. While many children may not intend to do so, there are times when a prank or seemingly innocuous activity can turn troublesome, if not dangerous.

Therefore, parents need to also educate their children on what is appropriate and what would constitute abuse online. For example, they should know that cyber crimes have severe fines and jail time penalties that could impact them and the family for the rest of their lives. For instance:

  • They should understand what bullying is and that it is a crime. Instead of talking about it online, they should discuss any issues they have with others with their parents.
  • Downloading from unknown or illegal sites can damage the computer and also make them vulnerable to future attacks.
  • Activities that involve hacking are considered crimes and could also result in heavy fines and jail time. For example, defacing or shutting down web sites or releasing viruses are criminal activities.

Repercussions

Parents should explain that a criminal record may cause:

  • Loss of school time that could impact grades and their ability to get into college or find work.
  • Financial loss and burden for the family due to legal fees and loss of time from work.

Finally, get to know other parents with whom the kids spend time. Ensure that the kids in the child’s circle have parental or adult supervision when they are using their computers. While this might be tricky, it is better to be safe than to be sorry.

Nadine Swayne understands the importance of keeping children safe on the computer. At the law firm of Kevin W Devore, legal representation is available if you have been charged with a white collar Internet crime. He has extensive experience with civil and criminal cases to benefit his clients.

Photo credit:  http://www.flickr.com/photos/sneddon/2399403962/

Categories
Marriage

A Brief Introduction to Common-Law Marriage

(US family law and generally) Marriage has historically been a respected institution espoused by almost every society. Usually, marriage constitutes a legal and sometimes religious mandate between licensed officials to wed a couple, such that the union is recognized by the government and, in some circumstances, a religious entity. You can choose to marry under the auspices of a religious leader or go to your city hall, after obtaining a marriage license.

However, there are many instances in which a couple might choose to carry on all the activities of a married couple without having gone through the legal or religious formalities. This is known as a common-law marriage, and it has its origins in England and early America when priests and licensed marriage officials were few and far between. Getting to an official to be married proved a hardship or outright impossible for many couples, so the law set aside certain provisions that ratified a union between man and woman that ensured they held the same benefits and legal recognition as the more formal marriages.

Present Day Requirements and Acceptance of Common-Law Marriages

It is important to note that not all states recognize common-law marriages, although those that don’t will often respect the validity of a common-law marriage formed in another, accepting state should the couple move to a non-accepting state. The states that do explicitly allow common-law marriages are Colorado, Alabama, Utah, Rhode Island, Texas, South Carolina, Montana, Oklahoma, the District of Columbia, Iowa, and Kansas. There are a handful of other states that allow common-law marriages with varying stipulations.

• Pennsylvania allows you and a spouse to have a common-law marriage if you’ve met all requirements before the first day of the year 2005; if you’ve cohabitated for this purpose on any date afterward, your relationship is not eligible and you need to get married formally.

• New Hampshire allows common-law marriages for purposes of inheriting an estate or will. Thus, if you or your significant other passes away and you weren’t married formally but adhered to the stipulations of the common-law variety, then you or your spouse are privy to the estate/will. In states where common-law marriages are not for inheritance purposes, then you do not automatically have any claim on inheritance-the family of the deceased receives primary consideration in the absence of a will.

• The only common-law marriages ratified by Ohio are the ones created before October 1991. After this date, mutual consent to live as husband and wife is not formally recognized as a marriage by the state and legal ramifications do not apply.

• Georgia only recognizes common-law marriages formed before January 1997.

• Idaho recognizes common-law marriages created before January 1996.

How is Divorce Handled in a Common-Law Marriage?

Somewhat asymmetrically, just because you don’t need a formal ceremony for cohabitation in a common-law marriage doesn’t mean you don’t need one for divorce. In fact, every state that accepts the common-law option requires you to undergo formal divorce proceedings, just like any traditionally married couple. All the issues that are normally dealt with in divorce proceedings must be handled by family court-alimony, child support, estate division, etc. It is important to realize that your rights to property division are not the same as in a traditional, formal legal marriage, and these vary from state to state.

About the author

Thomas Platt is a freelance writer who specializes in legal topics such as Medical Equipment Fraud, Medical Malpractice, Tax Fraud, Criminal Defense, Family Law and other topics as well.

Categories
Pre-nuptial Agreements

Are Pre-Nuptial Agreements Ironclad?

(US family law and generally) Every year nearly 2.3 million Americans get married, with nearly half of them culminating in divorce. This statistics concerning national divorce rates reveal that the likelihood of a breakup in marriages exceeds an incredible 50 percent. So it is not at all surprising that the extensive use of prenuptial agreements is ever on the rise.

Nature of a Prenuptial Agreement

Any prenuptial agreement is drawn up either before or while contemplating marriage. Such an agreement essentially divulges the assets as well as debts of both parties, and spells out just what happens to these either upon the death of a partner or if the divorce of the parties. When people are engaged to be married, their relationship becomes fiduciary in nature, and as such both partners have a duty to reveal assets and income. If they fail in this, the prenuptial agreement becomes null and void.

A Peep into History

Although it is a fairly common practice these days, courts previously subscribed to the idea that it negates public policy to afford a monetary settlement if a marriage ends up in either a separation or divorce. The principal reason for this factor was that an agreement to this effect would be undermining the conjugal relationship in advance and as such can encourage marital breakups.

Full Financial Disclosure

Total fiscal disclosure is indispensable. It must be kept in mind that requesting a prenuptial agreement can be interpreted by your future spouse as you having no trust in them. If you are being deceitful about your finances, you are only giving them plenty of ammunition to attack you. The basis of a legitimate premarital agreement is the need for disclosure. Without ample disclosure it is not easy to draft a binding contract, particularly if material facts are concealed. Thus, the way to guarantee the legality of the prenuptial agreement is to exchange prevailing net worth statements, which requires detailing assets as well as liabilities. Prenuptial agreements are in effect a sincere effort to decide issues such as distribution of wealth, division of property, support, etc. in the event of the demise of either of the spouses or the breakdown of the marriage that ends in separation or divorce.

Statute of Frauds

The Statute of Frauds requires that an agreement entered into in consideration of either marriage or a pledge to marry must be in writing and duly signed by both spouses.

Consideration

Consideration is an indispensable factor of an agreement. In case sufficient consideration is lacking, an agreement becomes invalid. In the marital sphere, the reciprocal promises to enter into wedlock serve as sufficient consideration.

Fairness

Any premarital agreement deemed unfair cannot be enforced if it is considered “unconscionable.” Courts tend to investigate an agreement that favors one spouse or the other in a lopsided manner on its own merits or demerits. Additionally, persons and conditions change, so that a contract that might seem fair at first becomes less so with the passage of time. Unconscionability is put to the test based on when the prenuptial agreement is enforced, not when it was signed, since enforcing an out-of-date agreement blindly can end in unforeseen financial hardship for the affected spouse.

Independent Counsel

To have common counsel in the drafting and reviewing of the proposed prenuptial agreement can be problematic. To safeguard the interests of either party, both parties should have separate counsel.

Duress

The last major point concerning the execution of the agreement is that it should be accomplished without duress. Sometimes the agreement is entered into on the eve of marriage, or even on the day of the wedding itself. Actually, a reasonable amount of time should pass after the signing of the agreement and the important day.

Trigger Clause

A good divorce lawyer will advise you to add a “triggering event” to the agreement that would kick start divorce proceedings automatically, while distinguishing between separate and marital property as of that date. This can come in handy, mainly if your prenuptial agreement is based on offering your partner a portion of your estate at a time when you are looking forward to some future earnings, inheritance, etc.

As the circumstances of every individual are unique, prenuptial agreements as a rule do not undergo standardization. Instead, they are specially drawn up to suit the specific requirements of both parties. Besides, such agreements do not necessarily remain ironclad unless they are properly structured.

About the author

Jonathan Ryerson is a freelance legal writer who focuses on Domestic Violence, Criminal Defense, Family Law, Mediation, DUI Defense and other topics.

Categories
Divorce Law Family Law

Some Hallmark Holidays Are Not Just Hallmark Holidays

Just through another Mothers’ Day-Fathers’ Day cycle, we are reminded again that not everything that is commercially exploited is bad. As parents and grandparents, we enjoyed sweet moments this spring; and as divorce mediators, we learned again, that for separated spouses, simple celebrations can have healing significance, whatever we or others may think about them. If we fail to listen carefully enough, or to respond appropriately, we can add to the thousand cuts that often characterize the divorce process.

Obviously, this is not only about parents’ day celebrations but about events small and large that are too numerous to catalogue, including birthdays, soccer games, camp visits, 5th grade “graduations” and others not in mind. It is also about attuning ourselves to our clients’ pain and the spouses’ willingness, conscious or otherwise, to reduce or enhance it for each other. Sometimes they need help to see that symbolic things hurt, that hurt parents are often surrogates for hurt children and that the golden rule is sometimes more about kids and parents than about gold. As “neutrals”, we are ideally placed to miss the cues or to provide this help. Most mediators wish first to do no harm, but in many small, yet important ways, these are opportunities for us to do good.

We are professionals, but human beings first. Many of us have children and grandchildren of our own. Some of us are divorced. This personal experience may help guide us, but it is also important for us to understand always, that our cases are not about us. Any sense that we are inattentive or even dismissive of symbolically laden matters undermines our effectiveness, and it reduces our chances of achieving settlements. And worse, we can become one of the thousand cuts.

Personally, we can’t wait for Mothers’ Day and Fathers’ Day, next year.

For more information about divorce mediation in Boston MA, family law mediation, and other forms of private dispute resolution such as arbitration, please feel free to visit www. LevineDisputeResolution.com, including blog and newsletter archive, which you may receive directly by clicking the RSS button.