You may have a tea pot collection, or civil war memorabilia or model trains. You have a pretty good idea who would enjoy this collection and want to make sure they get it when you are gone. Should you put it in your Will? How often will you have to re-write your Will as your collections vary and you have new friends. There is a very practical solution I recommend to my clients.
You don't list these physical items in your Will but you do reference a list which you may change from time to time. Then make a list of your special item and the member of your collector group who would so enjoy it. Be sure and date the list. Then as you change you mind or your collection changes you can write a new list. Sign and date the list (no notary or witnesses needed). This way you can keep current without having to change your will or write a codicil.
This list can include anything you want including household items, clothing, or your best cookpot. Whatever you think someone else might treasure. Having this list can avert family disputes later as there will be no question as to who was to receive the button collection.
If you don't have anything special to list, then just direct your personal representative to dispose as she sees fit. Be sure to give latitude to give away as well as sell.
Any other questions?
Tuesday, December 8, 2009
Friday, December 4, 2009
Minor Children and No Will?
If you have minor children you definitely should have a will. Parents I talk to say they've been meaning to get around to it, they can't afford it, or don't see why they need one because they have no "estate". I have added estate planning to my practice to counter these very arguments. My intention is to make it affordable and easy to take care of this important matter.
If you have life insurance, and you should, your children will have an estate.
Here are the provisions you should have in your will.
Guardian of a minor child
A guardian is the person you designate to take care of your children if both parents are dead. If a parent dies the other parent automatically is the guardian. Even if the parents are divorced the children would go with the other parent unless a court has found something seriously wrong with that parent. While you can state your preference in your will, the other parent has precedence.
The designated guardian should be someone you feel will raise your children with the same values you would. Some parents make a mutual pact with another family to serve as guardians for their children. If you don't have a will, the state will make a determination. You don't want to risk having your children with Child Protective Services until a guardian is selected.
If your chosen guardian lives far away you might want to appoint a temporary or interim guardian. This could be a neighbor or close friend who will step in immediately until the permanent guardian can be reached and is available.
The guardian of the person might not be the person who will manage the children's money. I strongly recomend a different person as the trustee of the children's estate.
Trustee of the Children's Estate
The trustee manages the funds and property you have willed to your children. This can be a large sum if you have life insurance. This is the relative who is good with managing money, a very trusted friend, or a professional trustee. The trustee will disburse funds to the guardian for the care, feeding and education of your children.
By naming a separate trustee and guardian you provide a good check and balance. The nurturing substitute parent you select may not be the best money manager and the best money manager may not be the best nurturing parent. This provides balance and protects the guardian from being questioned as to what happened to the money.
If you are divorced: It is even more important that you name a trustee. If you don't, your ex spouse will be in charge of the children's estate. Probably not what you would prefer.
A Children's Trust
Your will should provide for a trust for the children. Besides naming a trustee, you can designate an age when your children will receive the disbursement. Remember there may be a large sum of money if you have life insurance. Most parents I meet don't want the funds disbursed at age 18, which it will be unless you make other provisions. Some parents designate age 25, some 35 with provisions for partial disbursements at certain ages. The money can be spent on education, and other expenses for the children. Your trustee should have a great deal of discretion but has the power to say no, just as you do.
Get a Will Now
Hopefully I have given you enough reason to get a will. You really should work with a lawyer to make sure your will accomplishes what you intend and that it is effective. I would be happy to discuss options with you.
If you have life insurance, and you should, your children will have an estate.
Here are the provisions you should have in your will.
Guardian of a minor child
A guardian is the person you designate to take care of your children if both parents are dead. If a parent dies the other parent automatically is the guardian. Even if the parents are divorced the children would go with the other parent unless a court has found something seriously wrong with that parent. While you can state your preference in your will, the other parent has precedence.
The designated guardian should be someone you feel will raise your children with the same values you would. Some parents make a mutual pact with another family to serve as guardians for their children. If you don't have a will, the state will make a determination. You don't want to risk having your children with Child Protective Services until a guardian is selected.
If your chosen guardian lives far away you might want to appoint a temporary or interim guardian. This could be a neighbor or close friend who will step in immediately until the permanent guardian can be reached and is available.
The guardian of the person might not be the person who will manage the children's money. I strongly recomend a different person as the trustee of the children's estate.
Trustee of the Children's Estate
The trustee manages the funds and property you have willed to your children. This can be a large sum if you have life insurance. This is the relative who is good with managing money, a very trusted friend, or a professional trustee. The trustee will disburse funds to the guardian for the care, feeding and education of your children.
By naming a separate trustee and guardian you provide a good check and balance. The nurturing substitute parent you select may not be the best money manager and the best money manager may not be the best nurturing parent. This provides balance and protects the guardian from being questioned as to what happened to the money.
If you are divorced: It is even more important that you name a trustee. If you don't, your ex spouse will be in charge of the children's estate. Probably not what you would prefer.
A Children's Trust
Your will should provide for a trust for the children. Besides naming a trustee, you can designate an age when your children will receive the disbursement. Remember there may be a large sum of money if you have life insurance. Most parents I meet don't want the funds disbursed at age 18, which it will be unless you make other provisions. Some parents designate age 25, some 35 with provisions for partial disbursements at certain ages. The money can be spent on education, and other expenses for the children. Your trustee should have a great deal of discretion but has the power to say no, just as you do.
Get a Will Now
Hopefully I have given you enough reason to get a will. You really should work with a lawyer to make sure your will accomplishes what you intend and that it is effective. I would be happy to discuss options with you.
Thursday, December 3, 2009
What is Estate Planning?
In my family law practice I advise my clients to change their will. I find that many of them do not have a will. I have decided to expand my practice to include Estate Planning.
Estate planning is not financial planning but should be a part of any financial plan. Estate planning is more about "End of Life Issues". Not what most people want to think about right? A basic estate plan should include, at the very least: A will, a Health Care Directive, a Power of Attorney for Health Care and a Durable Springing Power of Attorney. You may also want a Revocable Trust, minors trust, and trusts used to reduce inheritance taxes.
I will discuss the more complex plans later. Here is an explanation of the basic:
Last Will and Testament
A will allows you to direct what will happen to your property upon your demise. Most important function is to name a Personal Representative. This person will be charged with carrying out your wishes. If you have minor children you will want to name a Guardian and a Trustee for your children. The Guardian will take care of your children physically and a Trustee takes care of the children's money or property. I usually recommend that this be two different people. You will also want to name alternates.
Contrary to popular opinion, a will does not avoid probate. Your will means you have control of the process rather than relying on state law to disburse your assets. A will is a thoughtful thing to have for the sake of your loved ones.
Health Care Directive
Also called a "living will", this directive makes your wishes known regarding the extent of life support you desire. A very personal decision, it makes it clear to your relative and doctors what your wishes are.
Power of Attorney for Healthcare
This directive names the individual you would like to make decisions about your care when you are not able. It is important to discuss this sensitive topic with your chosen representative so he/she can make your wishes known.
Durable Springing Power of Attorney
This Power of Attorney allows someone to handle your financial affairs when you are not able. Durable means it remains in effect though you are incapacitated and Springing means it does not go into effect until your are deemed by your physician to be incapacitated. You will also want to add a HIPPA release so health care providers can release information.
These are the basic minimum documents you should have for your estate plan. Yes, you can find them on line but, of course, I recommend you talk to an attorney. State laws differ and you want to make sure your documents comply with your state's laws. Sometimes one word gives a document a different meaning. If you make a mistake, it can't be corrected when your gone. You may be surprised that it isn't as expensive as you may think.
I am always available for a free consultation. (Provided you live in Washington State)
Estate planning is not financial planning but should be a part of any financial plan. Estate planning is more about "End of Life Issues". Not what most people want to think about right? A basic estate plan should include, at the very least: A will, a Health Care Directive, a Power of Attorney for Health Care and a Durable Springing Power of Attorney. You may also want a Revocable Trust, minors trust, and trusts used to reduce inheritance taxes.
I will discuss the more complex plans later. Here is an explanation of the basic:
Last Will and Testament
A will allows you to direct what will happen to your property upon your demise. Most important function is to name a Personal Representative. This person will be charged with carrying out your wishes. If you have minor children you will want to name a Guardian and a Trustee for your children. The Guardian will take care of your children physically and a Trustee takes care of the children's money or property. I usually recommend that this be two different people. You will also want to name alternates.
Contrary to popular opinion, a will does not avoid probate. Your will means you have control of the process rather than relying on state law to disburse your assets. A will is a thoughtful thing to have for the sake of your loved ones.
Health Care Directive
Also called a "living will", this directive makes your wishes known regarding the extent of life support you desire. A very personal decision, it makes it clear to your relative and doctors what your wishes are.
Power of Attorney for Healthcare
This directive names the individual you would like to make decisions about your care when you are not able. It is important to discuss this sensitive topic with your chosen representative so he/she can make your wishes known.
Durable Springing Power of Attorney
This Power of Attorney allows someone to handle your financial affairs when you are not able. Durable means it remains in effect though you are incapacitated and Springing means it does not go into effect until your are deemed by your physician to be incapacitated. You will also want to add a HIPPA release so health care providers can release information.
These are the basic minimum documents you should have for your estate plan. Yes, you can find them on line but, of course, I recommend you talk to an attorney. State laws differ and you want to make sure your documents comply with your state's laws. Sometimes one word gives a document a different meaning. If you make a mistake, it can't be corrected when your gone. You may be surprised that it isn't as expensive as you may think.
I am always available for a free consultation. (Provided you live in Washington State)
Wednesday, November 18, 2009
Spending Money from a Defined Contribution Plan without the 10% penalty
Thanks to John James, www.specialsolutions.org
Special Solutions was founded by John James to assist families with special needs family members as they seek to provide for the future. As a Licensed Advocate for Protected Tomorrows®, John is uniquely prepared to guide families in developing a life plan for the family member.
Normally, distributions made before the participant attains age 59-1/2 are called “early distributions,” and are subject to a 10% penalty tax. The tax does not apply to early distributions upon death, disability, annuity payments for the life expectancy of the individual, or distributions made to an ex-spouse by a QDRO.
The tax Reg (72)(t)(2)(C) states that when you take money out of a qualified plan in accordance with a written divorce instrument (a QDRO), the recipient can spend any or all of it without paying the 10% penalty.
Let’s take a look at what happens when the ex-spouse receives the 401(k) asset. There are some specific rules to be aware of. Here’s an example.
In other words, if money is transferred from a qualified plan to an IRA, the check is sent directly from the qualified plan to the IRA. In a rollover, the funds are paid to the person who then remits the money to an IRA. A payment to the person, whether or not there is a rollover, is subject to the 20% withholding. Only a direct transfer avoids the withholding tax.
This is a great planning tool when clients have a need for cash and there is no other way to get it.
Special Solutions was founded by John James to assist families with special needs family members as they seek to provide for the future. As a Licensed Advocate for Protected Tomorrows®, John is uniquely prepared to guide families in developing a life plan for the family member.
Normally, distributions made before the participant attains age 59-1/2 are called “early distributions,” and are subject to a 10% penalty tax. The tax does not apply to early distributions upon death, disability, annuity payments for the life expectancy of the individual, or distributions made to an ex-spouse by a QDRO.The tax Reg (72)(t)(2)(C) states that when you take money out of a qualified plan in accordance with a written divorce instrument (a QDRO), the recipient can spend any or all of it without paying the 10% penalty.
Let’s take a look at what happens when the ex-spouse receives the 401(k) asset. There are some specific rules to be aware of. Here’s an example.
Sarah was married to an airline pilot who was nearing retirement. They were both age 55. There was $640,000 in his 401(k) and the retirement plan was prepared to transfer $320,000 to her IRA.
She could transfer the money to an IRA and pay no taxes on this amount until she withdraws funds from the IRA. But Sarah’s attorney’s fees were $60,000 and she needed another $20,000 to fix her roof. She said, “I need $80,000.” Because the 401(k) withholds 20% to apply toward taxes on a withdrawal, Sarah asked for $100,000. After the 20% withholding, she had $80,000 in cash and $220,000 to transfer to her IRA. She was able to spend the $80,000 without incurring a 10% penalty on the $100,000, which saved her $10,000 in penalties.
After the money from a pension plan goes into an IRA, which is not considered a qualified plan, Sarah is held to the early withdrawal rule. If she says, “Oh I forgot, I need another $5,000 to buy a car,” it is too late. She will have to pay the 10% penalty and the taxes on that money.
It is important to understand the difference between rolling over money from a qualified plan and transferring money from a qualified plan. The Unemployment Compensation Amendment Act (UCA), which took effect in January 1993, stated that any monies taken out of a qualified plan or tax-sheltered annuity would be subject to 20% withholding. This rule does not apply to IRAs or SEPs.
In other words, if money is transferred from a qualified plan to an IRA, the check is sent directly from the qualified plan to the IRA. In a rollover, the funds are paid to the person who then remits the money to an IRA. A payment to the person, whether or not there is a rollover, is subject to the 20% withholding. Only a direct transfer avoids the withholding tax.
This is a great planning tool when clients have a need for cash and there is no other way to get it.
Tuesday, November 17, 2009
10 Simple Communication Strategies for Divorced Parents
10 Simple Communication Strategies for Divorced Parents
Courtesy of Rosalind Sedacca. Her site provides good information for divorcing parents. http://www.childcentereddivorce.com.
by Cindy Harari, Esq.
Cindy Harari, Esq. is my guest contributor this week. She offers valuable information about communicating with your ex that is effective and promotes healthy parenting relationships. My thanks for Cindy for her excellent advice. Rosalind Sedacca
One of many challenges faced by divorced parents is the dilemma of communicating with their child's other parent. Although the parents have decided to divorce and end their "personal" relationship, when children are involved, the dissolution of a marriage mirrors the end of a business relationship where the business partners (the parents) have produced a product or asset (the children) that remains after the termination of the business.
Even though the parents no longer wish to continue to "work together," they share the desire for their children (the priceless marital asset) to grow and thrive. Among other things, the success of the children requires divorced parents to communicate with each other about child-focused issues. So how do divorced parents communicate effectively about their children when they are angry or upset or would simply rather not speak with their child's other parent ever again? Read on...
1. Whenever possible, communicate in writing. Writing gives you the opportunity to clarify your thoughts and express yourself clearly. Also, in the event of a misunderstanding, everyone can go back and look at what is written. E-mails and faxes have the advantage of having a date and time embedded as well.
2. Stick to child-focused issues and keep your communication informative, not emotional.
3. Keep your communication clear. Use bullet points or numbers rather than paragraphs.
4. If an item requires a response, indicate when the response is necessary. Also state what action will be taken in the event the other parent does not respond. For example: Our son's class trip is on (date) and the cost is ($X). The permission slip is due on (date). Please let me know by (date) if this is OK with you. If I don't hear from you, I will sign the permission slip and you and I will split the cost.
5. Do not use your communication as an opportunity to re-hash your feelings about the subjects you are writing about. Remember - this is business communication about your children.
6. Divide your writing into sections such as "old business," "new business" and "FYI."
7. Respond to communication from your child's other parent as you would like to have them respond to you. Be prompt and businesslike.
8. Use e-mail (and all written communication) courteously. Do not write entirely in capital letters. Do not use boldface type. Do not use extremely large type. Do not use exclamation points. Stay away from sarcasm. No name-calling or bad language at any time.
9. Take the initiative so neither parent becomes the "communication liaison." Children's schools, day care providers, extracurricular activity providers, etc. should have contact information for both parents. Each parent should receive notices from these sources. If that is not happening, the parent who is not receiving the information can provide their contact information and get on the distribution list.
10. Look into online programs such as OurFamilyWizard and ShareKids for calendaring and communication. These programs are designed especially for divorced parents.
There is a time and a place for your emotional release regarding your divorce, but, at the same time, there is a need to conduct the business of raising your children with someone you would probably rather not talk to. So how do you find the strength to "take the high road" time after time and communicate calmly and effectively with your child's other parent?
Always remember that your child's wellbeing depends on what you do and how you do it. It takes work to compartmentalize your emotions and put the needs of your children first, but you can do it. You are not alone - there are many resources available for to help you grow through the divorce. Successful communication strategies are a great addition to your post-divorce parenting toolkit.
********************************************************
Cindy Harari, Esq. is an attorney, trained parenting coordinator, mediator, and arbitrator. Her professional training combined with years of practical experience gives Ms. Harari a unique perspective and distinctive insight regarding issues of divorce and parenting. For additional information, please visit www.solutionsnottalk.com. © 2008. Cindy Harari. All Rights Reserved.
Rosalind Sedacca, CCT is a relationship seminar facilitator and author of the new ebook, How Do I Tell the Kids ... about the Divorce? A Create-a-Storybook Guide to Preparing Your Children -- with Love! The book provides fill-in-the-blank templates for customizing a personal family storybook that guides children through this difficult transition with optimum results. For more information about the book, Rosalind's free articles and free ezine visit http://www.childcentereddivorce.com.
© Rosalind Sedacca 2008. All rights reserved.
Wednesday, April 29, 2009
How to Get A Divorce Without Going Broke
This is very good information, especially for people in a complex divorce. You and your attorney can work as a team to keep your costs down. Ask what you can do to reduce costs. For example: You can provide copies when there are extensive records so that you don't have to pay for the attorney's staff to make copies and pay for the overhead costs for copies. If you can obtain records yourself rather than the attorney having to obtain through formal legal process you can also reduce costs. Wherever you can help us save time, you can save money. Be a partner with your attorney.
April 29, 2009 /24-7PressRelease/ -- How to Get A Divorce Without Going Broke
Article provided by Schwartz Law Firm. Please visit our Web site at http://www.schwartzlawfirmpc.com.
Divorce can be expensive. The combination of divided assets, increased individual living expenses and decreased collective income often leaves everyone involved feeling financially drained. It is possible to obtain a divorce and protect your assets without going broke.
Protecting Your Financial Interests Between The Time You File for Divorce and The Time The Divorce Is Finalized
When preparing for a divorce, many people face the same questions:
How am I going to pay my bills?
Can I stay in the house pending the divorce?
Are we going to have to sell or refinance our home?
After we decide to separate, when can I use the joint bank account?
What can I do if my spouse takes money out of our shared accounts?
An experienced family law attorney can take immediate action to protect your interests and answer your questions. An attorney can file a financial restraining order to prevent the dissipation of your shared assets and file a motion to maintain the status quo to ensure that bill payment arrangements do not change. If you want to stay in the home, an attorney can file a motion for the exclusive use of the marital home. When appropriate, an attorney can file for temporary child and spousal support and request immediate payment of attorney fees to allow you to pursue (or defend) a divorce action.
From a legal standpoint, these are the essential first steps, which will help you to make it through the process of filing for divorce. Divorce is a document intensive and fact specific process. You can reduce attorney fees by providing documents to your attorney and/or helping to prepare various financial charts, budgets, etc. Your role in the process should be active, not passive.
Preparing For The Initial Visit with Your Attorney
Before you ever meet with an attorney, take time to prepare relevant information regarding your assets, debts and ongoing financial obligations. Your attorney will need a number of documents before he or she can take action, but by collecting this information in advance you can reduce the time and expense of divorce.
Among other things, you should bring current utility bills, documents relating to your mortgage, tax records, bank statements, vehicle titles, retirement documents and investment records. This documentation will allow your attorney to take immediate action to protect your interests and develop a broad outlook regarding the fair division of marital assets.
Call your attorney's office to ask what specific documents they require and if they have any forms for you to complete prior to the meeting.
Keeping Costs Down During Litigation
Divorce varies immensely from one family to the next. In some cases, separating spouses can barely stand to share a room; in others, the divorce is amicable and separating spouses can work together to reach a fair resolution. Ultimately, the better you are able to work with your spouse throughout the divorce, the less costly the divorce is likely to be.
The more information you can provide to your attorney, the less you will pay in copy costs and attorney time. The better organized the information, the less time your attorney will spend reviewing the documents. For example, most attorneys use an asset-liability chart to assist with mediation and trial. The chart is used to show a mediator (or judge) the marital estate "at a glance." Your attorney should give this chart to you to complete and attach the supporting documentation. If you dump a stack of documents on an attorney who will then have to weed through numerous accounts and statements, your billable hours will increase accordingly.
Other ways to reduce costs are to request your financial records directly from your bank or other financial institution, employer, school, or medical doctor. This will save you subpoena costs and the time your attorney will spend to prepare them. Sometimes, however, an attorney will still need to subpoena documents. But these are some ways to help cut costs.
Whining Costs Money
You should be able to communicate freely with your attorney. But if you are calling every day to report on the sins of your recalcitrant spouse, you will be unnecessarily racking up your attorney bill. The same holds true for forwarding every email exchange between you and your spouse. While your attorney will be empathetic to your emotional, as well as your legal needs during a divorce proceeding, if you really need to simply vent or a shoulder to cry on, it's much less expensive to call a friend, counselor or priest.
Conclusion
While cutting costs is a legitimate concern in any case, it is most important that you select an attorney with whom you are comfortable and whom you trust. Most attorneys want to help their clients and are genuinely interested in saving them money. But ultimately we must do what is in our client's best interests, and sometimes this involves spending additional funds to conduct more extensive discovery, take depositions, or hire financial experts to value a marital home, business, or other assets. It is possible to pursue or defend a divorce action without going broke if you have an attorney who is sensitive to these issues.
April 29, 2009 /24-7PressRelease/ -- How to Get A Divorce Without Going Broke
Article provided by Schwartz Law Firm. Please visit our Web site at http://www.schwartzlawfirmpc.com.
Divorce can be expensive. The combination of divided assets, increased individual living expenses and decreased collective income often leaves everyone involved feeling financially drained. It is possible to obtain a divorce and protect your assets without going broke.
Protecting Your Financial Interests Between The Time You File for Divorce and The Time The Divorce Is Finalized
When preparing for a divorce, many people face the same questions:
How am I going to pay my bills?
Can I stay in the house pending the divorce?
Are we going to have to sell or refinance our home?
After we decide to separate, when can I use the joint bank account?
What can I do if my spouse takes money out of our shared accounts?
An experienced family law attorney can take immediate action to protect your interests and answer your questions. An attorney can file a financial restraining order to prevent the dissipation of your shared assets and file a motion to maintain the status quo to ensure that bill payment arrangements do not change. If you want to stay in the home, an attorney can file a motion for the exclusive use of the marital home. When appropriate, an attorney can file for temporary child and spousal support and request immediate payment of attorney fees to allow you to pursue (or defend) a divorce action.
From a legal standpoint, these are the essential first steps, which will help you to make it through the process of filing for divorce. Divorce is a document intensive and fact specific process. You can reduce attorney fees by providing documents to your attorney and/or helping to prepare various financial charts, budgets, etc. Your role in the process should be active, not passive.
Preparing For The Initial Visit with Your Attorney
Before you ever meet with an attorney, take time to prepare relevant information regarding your assets, debts and ongoing financial obligations. Your attorney will need a number of documents before he or she can take action, but by collecting this information in advance you can reduce the time and expense of divorce.
Among other things, you should bring current utility bills, documents relating to your mortgage, tax records, bank statements, vehicle titles, retirement documents and investment records. This documentation will allow your attorney to take immediate action to protect your interests and develop a broad outlook regarding the fair division of marital assets.
Call your attorney's office to ask what specific documents they require and if they have any forms for you to complete prior to the meeting.
Keeping Costs Down During Litigation
Divorce varies immensely from one family to the next. In some cases, separating spouses can barely stand to share a room; in others, the divorce is amicable and separating spouses can work together to reach a fair resolution. Ultimately, the better you are able to work with your spouse throughout the divorce, the less costly the divorce is likely to be.
The more information you can provide to your attorney, the less you will pay in copy costs and attorney time. The better organized the information, the less time your attorney will spend reviewing the documents. For example, most attorneys use an asset-liability chart to assist with mediation and trial. The chart is used to show a mediator (or judge) the marital estate "at a glance." Your attorney should give this chart to you to complete and attach the supporting documentation. If you dump a stack of documents on an attorney who will then have to weed through numerous accounts and statements, your billable hours will increase accordingly.
Other ways to reduce costs are to request your financial records directly from your bank or other financial institution, employer, school, or medical doctor. This will save you subpoena costs and the time your attorney will spend to prepare them. Sometimes, however, an attorney will still need to subpoena documents. But these are some ways to help cut costs.
Whining Costs Money
You should be able to communicate freely with your attorney. But if you are calling every day to report on the sins of your recalcitrant spouse, you will be unnecessarily racking up your attorney bill. The same holds true for forwarding every email exchange between you and your spouse. While your attorney will be empathetic to your emotional, as well as your legal needs during a divorce proceeding, if you really need to simply vent or a shoulder to cry on, it's much less expensive to call a friend, counselor or priest.
Conclusion
While cutting costs is a legitimate concern in any case, it is most important that you select an attorney with whom you are comfortable and whom you trust. Most attorneys want to help their clients and are genuinely interested in saving them money. But ultimately we must do what is in our client's best interests, and sometimes this involves spending additional funds to conduct more extensive discovery, take depositions, or hire financial experts to value a marital home, business, or other assets. It is possible to pursue or defend a divorce action without going broke if you have an attorney who is sensitive to these issues.
Thursday, April 23, 2009
10 Things Not To Do In Your Divorce Case
I continue to find valuable information on other people's blogs. This one is especially relevant. Read and heed.
Divorce is not easy. There are many pitfalls and traps awaiting parties that have not educated themselves about the process. People often make bad decisions under stress, or without the guidance of an experienced lawyer. Don’t be one of them. Divorce law isn’t rocket science, but it isn’t always intuitive. Avoid the following 10 divorce pitfalls to get a better result.
During your divorce, you should NOT:
1. Lie to your lawyer: We are here to help you. Your communication with us is privileged, meaning we can’t tell others about it, except in certain child abuse scenarios. The more we know, the more we can help. We need to know everything, the embarrassing, the ugly, and the secret. If you have a drug, alcohol, or gambling problem, tell us. You have two options: (1) Disclose and likely hear from your lawyer that your secret or problem is irrelevant to the court process, or (2) Fail to disclose and have your case hurt at trial because the other lawyer knows facts you haven’t told your lawyer.
2. Lie to the court: If you have a trial, the result is directly affected by your credibility. Judges are generally experts at determining who is telling the truth, and who is lying. Not only is lying to the court a crime, but your lawyer may have a duty to stop the proceeding and tell the court if he or she knows you are misrepresenting facts! If you have areas of your case that are sensitive, work with your lawyer on what you are going to say, but don’t misrepresent.
3. Involve the kids in the process: If your case involves a custody or parenting time dispute, nothing will draw the wrath of the court faster than involving your kids in the dispute. Don’t talk to them about the case. Don’t use them as pawns in the battle against your spouse. Don’t use them as your therapist, or treat them as your peers. Don’t put your spouse down in front of the kids. You are not only harming your case, you are harming your children.
4. Hide or fail to produce documents: You have an absolute right to see your spouse’s financial documents. Your spouse has an absolute right to see your financial documents. I have seen many cases that could have been simple turn complex and expensive when someone decides to not voluntarily produce records. The court can force you to produce records, and order that you pay your spouse’s lawyer fees incurred in getting the records. Good clients and good lawyers produce documents quickly and voluntarily. I had a case where we asked for some email records from the other side. They did not produce them, and when we filed a motion to compel their production, they tried to tell the court that they had been destroyed. The stunt seriously impacted the opposing lawyer’s credibility with the court.
5. Refuse to cooperate with a court appointed expert: In divorce and custody cases, experts called “custody evaluators” are routinely appointed to gather information about a family and make a recommendation regarding an appropriate parenting plan. If one is appointed in your case, cooperate. Be on time for appointments. Treat the expert with appropriate respect. Ignoring the requests of the evaluator can seriously harm your position and credibility with the court. An evaluator will likely make negative assumptions about you if you cannot comply with a court’s order to cooperate.
6. Settle without analyzing your case: Divorce can be unpleasant and emotionally painful. One reaction is to try to get it over quickly. Do not give into the urge to be done with the case before you have a full understanding of the assets and what a fair distribution looks like. You don’t want to be in a position where you are contemplating settlement and your spouse knows more about the assets than you. Prepare and go over a proposed distribution of assets and liabilities with your lawyer. Make sure you know the nature and extent of the assets, and get additional discovery if you don’t. Do not settle prematurely, before you know what is fair.
7. Fail to try to resolve the case outside of court: Don’t settle early without analysis, but also don’t fail to try to settle. Good lawyers and reasonable people settle most divorce cases without a trial. Many clients benefit from mediation, either through the county courthouse or through a private mediator. Our experience has been that many very difficult settle in mediation with the guidance of a trained expert mediator. You should always consult with your lawyer during the process to make sure you are getting a fair result. Settling also means you choose the outcome rather than have a judge impose an outcome on you. Parties that settle are generally happier long term, and have less ongoing conflict. Even if the other side is unreasonable, you should still make an offer to create a record of your position.
8. Take out your stress in unhealthy ways: This is the wrong time to up the drinking or other unhealthy behavior. Expect stress from the conflict and plan for it. Take out your stress in healthy ways, like at the gym, sports, or in talking to friends or a counselor. Don’t take it out on your children, or your body through unhealthy behaviors.
9. Be economically irrational in negotiations: At some point in every case it costs more to continue arguing than what is at stake. Approach your case with a business like mind. Are you really winning if you spend $1000 on lawyers to argue over a $50 lamp? Some (bad) lawyers insist on arguing about every point, without regard to cost. Every issue is a new battle front. A request to resolve one issue results in two more contested issues. In our opinion, these lawyers don’t serve their clients well. Pick your battles. If it costs $1000 to argue over something you can replace at Target for $20, buy a new one, and focus on what is really important.
10. Be your own lawyer if your case is contested and your spouse is represented: Many judges dislike unrepresented parties. Even experienced divorce lawyers hire experienced divorce lawyers for an objective opinion. Many unrepresented people who think they have a great case find out otherwise after a judge rules against them because they can’t tell the judge everything they want to because of the rules of evidence. If you disagree over property or custody, and your spouse has a lawyer, seek representation.
Source: The Oregon Divorce Blog.
SOURCE FOR POST: Oklahoma Family Law Blog
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