Tuesday, October 28, 2008
Recently, I have read articles in various media about a movement to deal with litigation, especially medical malpractice cases, by having the party/parties at fault start off very early on by apologizing to the injured party (or their family) and take responsibility. It is a somewhat risky strategy since the potential defendant is exposing himself/herself/itself to liability by making what we call an "admission against interest". Nevertheless, much of the experience with that approach has been very favorable to both sides in such matters. It reduces anger, frustration and litigation. It may also result in parties being satisfied with smaller settlements. There is often a much faster resolution of the issues.
Christine Bauer, who writes the Florida Divorce & Family Law Blog, had an interesting post today about the value, and she would say necessity, of an apology in a divorce case. She wrote about golfer Greg Norman's divorce and how the lack of apology has probably made things worse. Here's what she had to say, including a link to an Australian newspaper.
"There are many reasons for divorce, and sometimes the blame for the divorce falls more on one party than the other. I've said in other blogs that there are two 'divorces' when a party legally terminates their marriage, the legal divorce and the emotional divorce. The legal divorce is sometimes the easier part. I've always thought that in order to get through the emotional divorce you have to accept accountability for your actions, and apologize when you have been the person who has committed some wrong doing. It is the only way that you and your ex-spouse can move on. I know that this is easier said than done, but accepting accountability and apologizing can help you let go of your own anger and help you heal. I hope that the Normans can do that, because it appears there are still some bitter feelings.
"To read the latest about Greg Norman, his affair with Chris Evert and his divorce, see:http://news.theage.com.au/national/norman-never-apologised-about-evert-20081027-59q4.html. "
As you may know, divorces are often very emotional experiences. It is also true that while generally both parties are at fault for the breakup of the marriage, often only one of the parties recognizes his or her underlying mistakes that lead to the breakup. In many ways, it would probably be beneficial to the emotional health of the parties, and the bottom line financially, if one or both of the parties could and would apologize for at least some of the wrongs inflicted on the other party during the marriage.
Caution: Look before you leap. Before making such an apology, please talk with your lawyer. You might also want to talk to a counselor to figure out the best way to make the apology. Be aware that your heart-felt apology could trigger a bad reaction in your spouse. I wouldn't recommend it for every case, but an appropriate apology could be a huge benefit to everyone involved. I have had a number of cases where it would have undoubtedly helped end the divorce sooner, result in a better settlement for both sides and save everyone a lot of money. YMMV
Sunday, October 19, 2008
Mediation is one of the best ways to settle divorces or other family law issues, assuming that Collaborative Law is not utilized. With significant effort by both sides, mediation is very successful, resolving around 90% of the cases, at least in my experience. Even those that don't settle at mediation become more likely to eventually settle short of trial.
Mediation can be very emotionally draining and often leaves the parties exhausted, but generally pleased to have the matter resolved. After all the time and energy has gone into preparing for mediation and then working through the negotiations, the post-agreement steps are not really discussed much. So, what goes on after mediation?
- The parties normally leave the mediation site with a written and signed mediation agreement that spells everything out in great detail, although not in formal language. The first step, post mediation, is to have the formal agreement/court order drawn up. The attorneys will make sure that appropriate language is included to make the agreement clear and enforceable.
- The agreement/order is then reviewed by the parties and their attorneys. Once everyone approves the language, they sign it. The signed agreement/order is then submitted to the court. Sometimes, the order can be signed by a judge without a formal prove-up; other times, at least one party and his/her attorney will have to appear in court and have a brief prove-up hearing.
- Some additional paperwork often must be filed with the court to comply with local and state rules. Vital statistics forms are used and sometimes a child support form will be required.
- There may also be some brief, related court orders, such as a wage assignment, a medical support order or a qualified domestic relations order (also known as a QDRO), which may need to be signed by the judge. The wage assignment sets up a mechanism to automatically withhold funds from a parent's paycheck and then send the funds to the other parent. The medical support order similarly provides for payment for medical expenses and insurance provisions. The QDRO divides a retirement plan so that whenever payments are paid out from a plan, they are automatically divided between the two parties.
- There may be some real estate documents, possibly including a deed, deed of trust and a note for payment of a share of the equity. There can be assignments of mineral interests, utility deposits and other interests. Utility services may need to transferred.
- Car titles may need to be signed, or a power of attorney, limited to transferring a car title, may be used.
- Additionally, the parties will need to change their health, home, life and auto insurance.
- Sometimes, the parties will still need to separate their credit cards, although that is often done during a divorce.
- Parties also need to revise their wills and plan executors and beneficiaries.
- Furniture and belongings may still need to be separated and a specific date and time should be set to do that.
- The family photos and videos may need to be copied, scanned or otherwise divided between the parties.
As you can see, there's a lot that goes on before the fat lady sings. After the main court order is completed, the work is not too difficult. There's just a lot of loose ends to take care of. Hopefully, the list above will help you think about what needs to be done in your case after mediation.
Tuesday, October 14, 2008
From yesterday's Maryland Divorce Legal Crier, by James J. Gross:
‘This is worse than a divorce. I’ve lost half my money and I still have a wife.’
[Don't worry, women can use the joke also.]
James is always a great source for interesting and often amusing comments.
Monday, October 13, 2008
A Gentle Reminder: As of today, there is barely enough time to finish a divorce here in Texas before the end of the year. Because of the 60-day waiting period required by Texas law, a divorce filed after October 31 cannot be finished by the end of the year. If you are in a divorce that is already pending, you can determine whether the 60-day waiting period will be a problem.
Some people want to wrap up their divorces at the end of the year, or just after the first of the new year. If there may be tax considerations in your case, you should talk with your CPA or a tax attorney to advise you about your best course of action.
Naturally, given that it takes two to tango (and file tax returns), this is not necessarily a decision that just one party to a divorce gets to make. Timing for tax purposes affects both parties, so there must be a meeting of the minds or a court ruling. Taxes sometimes can be a major issue in a divorce, so be prepared to address the issue. You need to think about your situation and, with professional help, decide how you want to proceed. If you are going to mediation, be prepared to discuss the tax aspects of any settlement.
This may seem like just one more thing to deal with, but it can really affect the bottom line of any settlement, so plan ahead!
Friday, October 10, 2008
Charles Jamieson, a Palm Beach, Florida attorney recently pointed out a subtle trend with families in an excellent post about the role of health insurance in family life. He wrote the following in his Palm Beach County Family Law Blog:
"Getting married for money or for wealth dates back to genesis or even earlier. Divorce attorneys and most other people are aware of this dynamic and probably know people who have married for this reason. However, getting married for health insurance coverage is not so well known. This lesser known behavior should not be surprising, given the difficulty people have in today's society finding and affording reasonably priced health insurance. Consequently, for some modern couples, the words: 'In Sickness or in Health' have taken on an actuarial meaning. These couples may not be marrying for 'richer or for poorer'. Instead, they may be getting married for affordable co-pays and deductibles. These couples weigh any marital doubts that they may have against the medical needs that they do have. For the same reasons, a spouse may prolong an unhappy marriage so that they can maintain affordable health insurance coverage. With either scenario, the psychological pressures can be immense. A recent article in The New York Times profiled a number of couples, who have dealt with the motivation of obtaining health insurance in terms of becoming married or divorced. To review this article, please click here."
Charles points out how economic and/or medical conditions can directly affect one's marital status, both encouraging some to marry and encouraging some to stay married. With medical expenses being one of the leading contributors to price increases, the situation is likely to become more common.
Another way to deal with the situation is to use a prenuptial or post-nuptial agreement. Those agreements can be used for estate planning purposes as well as controlling the impact of debt and medical expenses. Parties can technically remain married, which can keep insurance in effect, but have all of their assets and debts divided by a binding agreement. Likewise, an older couple might marry to maximize some retirement or insurance benefits, but operate under a prenuptial or post-nuptial agreement for tax or family (keeping peace with their children) reasons.
Sometimes attorneys are able to help people come up with creative solutions for emotional and financial difficulties. The best advice: Look (go see an attorney) before you leap. Find an attorney with the experience, expertise and willingness to be creative. Solutions are available if you look in the right places.
Friday, October 3, 2008
Most family law cases are resolved through negotiations. Sometimes people use Collaborative Law. Sometimes they go to mediation. Sometimes they engage in informal negotiations. In a few cases, and for various reasons, sometimes they let a judge decide an issue or two, or sometimes they just go to trial.
Over the years, I have heard over and over that everyone should be unhappy after a court makes a decision. I have heard that as an argument to get the parties to reach an agreement in a divorce or family law case. I have even heard mediators say that they have done a good job if both parties are unhappy with the agreement. Does that mean that they have done a bad job if the parties like the agreement? Are our expectations so low, or is the argument just a way to get reluctant parties to accept a decision or agreement that they don't really like? I believe that negotiations can result in happiness by both sides. One process that is truly focused on successful negotiations is Collaborative Law. You can read more about it in this blog or in my Texas Collaborative Law Blog.
Aside from utilizing the Collaborative process, here are some ways people can act to improve their level of satisfaction with negotiations (or even trial outcomes).
1. Adjust your expectations. Most attorneys want their clients to be realistic about the possible outcomes. Very few attorneys (especially good ones) will encourage their clients to assume that everything will work out well or that they will get everything they want. Experienced attorneys are able to give realistic ideas to clients about what to expect, what the law allows and what the results often have been in similar situations. Clients sometimes don't want to face the possibility of an unpleasant outcome, but they may be facing bad facts, an unfavorable legal position or a hostile judge or jury. Clients often need to not be overly optimistic. Lowering expectations makes it easier to meet or exceed them, which means the client is often very happy.
2. Try a different process. If you are unsuccessful in reaching a satisfactory agreement in direct negotiations with your spouse/opponent, maybe you should change the environment and take a different approach. You can always go to court, but I prefer to use mediation in most cases. Somehow the use of a trained, neutral third party mediator raises the chances of success. Often the mediator ends up having more credibility than the attorney for either party; being known as neutral and with special experience and expertise, the mediator can often move mountains. If mediation doesn't work, the parties can try arbitration or trial. Of course, my all-time favorite is Collaborative Law, although you can't easily jump in or out of the process. Collaborative is a good starting point because it can leave open the other alternatives.
3. Focus on the future. Playing the blame game is really counterproductive. Sometimes it is important to figure out what went wrong, but most of the time it generates hard feelings, leads to more arguments and wastes time. In contrast, if the negotiations focus on how to achieve the goals for each party and just look to the future, the discussions can move much more quickly and be more successful.
4. Distract yourself. One of the "cures" for a crying infant is to distract the child by various means, such as a new activity or motion, new sounds, placing the child in a new environment, etc. You can do the same thing for yourself. If you figure out that you are in a funk because you are having difficulty dealing with a case or some issues, you can lead yourself out of the funk by such things as physical activity, pleasant music or background sounds or moving yourself into a different environment. It takes some self-awareness, but anyone can do it, if they want to.
5. Get more information. Sometimes getting additional information about a subject under discussion will lead to a decision. Instead of spending hours arguing about the value of a house, it may be more rational to get a new appraisal or run comps. Sometimes it helps to know the rules of a program or an investment service. You may be mistaken in some assumptions you have made, and getting information may help you correct your thoughts or approach so that you can see an appropriate solution or so that you can realize that you have already done well.
6. Forgive. Being able to be a mature adult and to offer forgiveness sure positions you to be successful. People can really get bogged down with hatred, anger and reliving the past. Let go and you can focus on your goals for the future. Get rid of the negative emotions and you can operate at a higher level. Everyone makes mistakes and everyone makes bad mistakes sometimes. We all have done things that caused hurt to our loved ones. If you have received the hurt, you can let go of the painful incident if you just forgive the other party. Forgiveness frees both parties to succeed.
7. Choose to be happy. Some people have a hard time accepting that they can choose their mood, but it is true in many cases. Mental or emotional illnesses may prevent a person from being able to exercise that much control, but the more common situation is that people have the ability to choose to be happy. Making a conscious effort can lead to a very pleasant mood.
It is important to ignore the nay sayers who will whisper negative comments that will upset you and make you unhappy. There are many well-intentioned people who cross your path and will be influencing you and your attitude. You can take charge of your own attitude by following the suggestions above.
Wednesday, October 1, 2008
One of the factors in selecting an attorney to hire in a family law case is location. Here in Tarrant County, Texas, more people are living in downtown Fort Worth and they may want to hire a lawyer with a downtown office for convenience. At the same time, many who work in downtown Fort Worth find it convenient to have a lawyer whose office is also downtown.
Actually, as I have posted previously here, there are a number of factors which should be considered in choosing a divorce or family law lawyer. Location may be a factor, but I would suggest that you take a broader view and consider the following factors which were discussed in the previous post:
1. Start with the end in mind.
2. Perhaps the single best source of information is recommendations from your friends.
3. Look at the experience of the attorney.
4. Find someone who specializes in family law if you have a family law issue.
5. Pay attention to the approach the attorney recommends.
6. Consider the chemistry.
7. Discuss attorney's fees.
Choosing a divorce lawyer or an attorney for other family law matters is a very important decision. I would rate chemistry, experience and communication as the highest considerations, but recommendations and convenience are also important. I recommend that you investigate any attorney you are considering and be sure to look at more than one. Check out the attorneys on the Internet. Before getting started, spend some time thinking about what you want to end up with and what budget and source of funding you have to work with. Make your decision after meeting with the prospective candidates and carefully evaluate all the factors. Each person will weight the factors somewhat differently. You should decide based on your own unique situation.