Three Divorce Trends In The Post-2008 World
February 22, 2012 1 Comment
Interesting article on divorce in this down-economy that tags three trends in divorce. Unsurprisingly, mediation is one of these trends…click here for the other two.
Divorce and the Mortgage
February 17, 2012 Leave a Comment
Many divorces are in a rut due to the mortgage on the marital home. When that home is worth less than what it takes to pay off the mortgage, no one typically is interested in taking on that debt. Refinancing the mortgage can also be a dead end. Additionally, a sad sense of optimism sometimes hovers over the house that it might regain its value with a little more patience. A little more patience for some couples has turned into years and a rut a mile wide.
For some couples, the issue is one where there may be a silver lining, if there is a little research done. Some mortgages will qualify for refinancing that may have been thought to be a lost cause. Take a look here for one such solution.
Valentine’s Day: The Family Lawyer’s Perspective
February 14, 2012 Leave a Comment
Jennifer Giles is a Domestic Lawyer in Alpharetta, Georgia.
It’s Valentine’s Day. I’m a family law attorney, and it’s not such a romantic holiday for my clients.
In fact, another attorney and I ended up scheduling a meeting with the clients on Valentine’s Day. It was the only day that happened to work with our schedules. The case is a divorce but just about as amicable as they get.
It got me to thinking. These same people were probably sitting across the table from one another one of the past few years sipping champagne and celebrating Valentine’s Day. Now, they are sitting across the table from one another dividing their belongings and deciding who gets the kids when. Probably not such a happy Valentine’s Day for them, but it could be much worse.
The clients to whom I am referring chose to handle their divorce through the collaborative process instead of having a pull-out-all-the-stops courtroom fight. What does this mean? It means that instead of sitting across the table from one another sipping champagne on Valentine’s Day, they are sitting across the table from one another sipping coffee while civilly talking about divorce.
This is a great situation to find yourself in during a divorce, especially if you have children. Even after the Court officially declares you free of the other party in marriage (which might be a blessing for you both), you both still have your children, which means that you have to deal with each other for quite some time.
I find that one of the number one breakdowns in every relationship that comes through my office door is communication. The clients have stopped talking to one another and at times it seems like they have completely forgotten how to speak with each other at all. Not a good situation if there are children. For one, children will continue down the path of being children, getting in trouble (sometimes worse than others), asking uncomfortable questions that you would rather have the other party answer… You get the picture. So, the question is if you can sit across the table from one another while discussing your divorce, can you sit across the table from one another while deciding how best to handle a kid issue?
The line between love and hate is indeed thin. A lot of times during divorce, that line is broken into tiny pieces that cannot be put back together. During a collaborative divorce, the line can be repaired at least to an extent where you can continue to communicate in the future without wanting to shred each other to pieces. Not every case is the right situation for collaborative divorce (a.k.a sitting around a table with attorneys, divorce coaches, a financial neutral, and a child specialist) but if you want to try to salvage what peace and civility that you can, perhaps it’s worth a shot. A few years after the divorce is over and your son asks about the birds and the bees, you’ll probably be glad you can call the other parent and ask for help.
Ms. Giles’s areas of practice include divorce, adoption, custody disputes, modifications, domestic violence, and other family law matters. She speaks Spanish and has assisted Spanish-speaking clients through complex family law matters. Contact her at jgiles@atlanta-familylaw.com.
I’ve Heard that Divorce Mediation is Cheaper than an Attorney…Check the Fine Print
February 10, 2012 1 Comment
Is divorce mediation cheaper than divorce litigation? There is research and other commentary that suggests that mediation is cheaper, but the common consumer should be aware of the fine print.
Fine Print One: Mediation doesn’t guarantee an agreement. You could pay for mediation and, if no agreement is reached, still have to move forward with litigation.
Fine Print Two: Mediation works when both parties in divorce are reasonable. If one or both spouses cannot control their emotions, making the business-decisions of divorce and the self-less decisions of parenthood may simply be impossible.
Fine Print Three: Mediators will not serve as your attorney. If you have a legal question, you should ask an attorney and not the mediator. Many individuals are unaware that you can use an attorney for counseling (short sessions for specific legal information and advice), litigation (to represent you in all aspects of litigation), and for finite projects (to draft a parenting plan, file the uncontested divorce paperwork, represent you at the mediation only, write a will, etc.). If you arrive at mediation without knowing the legal landscape, you will have arrived unprepared. If you are trying to undercut or minimize legal fees, then use a lawyer wisely and then you may be able to use mediation wisely, too.
E-Discovery Disputes in Employment Matters
February 9, 2012 Leave a Comment
KPMG has been ordered to preserve the hard-drives of many perhaps “similarly situated” auditors, not just the hard-drives of the two auditors suing them, in an underpayment of wages case in New York. It may be time to either mediate the e-discovery matter (see list of qualified E-Neutrals) in this two-party case that apparently has class-action exposure!
When Should You File Bankruptcy, Before or After a Divorce?
February 8, 2012 Leave a Comment
Jennifer Jakob-Barnes is a Bankruptcy Attorney in Georgia.
By: Jennifer Jakob-Barnes, Jakob-Barnes Law Firm, LLC
Couples who are currently married can file bankruptcy together, even if they have separate households. Once a divorce is final, a couple can no longer file bankruptcy together. If there is an impending divorce it may benefit the couple to file bankruptcy before the divorce is final. I only suggest investigating the possibility of filing a Chapter 7 bankruptcy together, not a Chapter 13 bankruptcy.
A Chapter 7 bankruptcy is a liquidation of assets. The Trustee wants to liquidate any assets that an individual has that cannot be exempted by state law. The Trustee uses the money to pay the creditors. Most Chapter 7 bankruptcies are considered no asset chapter 7 bankruptcies because the individual has no assets to liquidate. An experienced bankruptcy attorney can apply state specific exemption to the assets and advise base on the assets whether a Chapter 7 bankruptcy is the best option. To file a Chapter 7 bankruptcy, once must qualify based on the household income for the last 6 months. At the end of a Chapter 7 bankruptcy, the individual receives a discharge from unsecured debt, meaning the individual is no longer liable to pay the debt. Debt that is secured by Property (mortgage or car loan) must be paid if the individual is keeping the property. A Chapter 7 bankruptcy is considered a fresh start. Many people are able to keep their house and car in a chapter 7 bankruptcy when there is little or no equity.
A Chapter 13 bankruptcy is a repayment plan. In a Chapter 13 bankruptcy, the individual always has to pay for items he will be keeping. For example: if the individual wants to retain a home with a mortgage, the Chapter 13 plan has to include any amount the individual is behind on the mortgage when he filed the bankruptcy case and the individual has to continue to pay his monthly ongoing mortgage payments. Chapter 13 plans are either 3 or 5 years in length depending on the individual’s income. Individuals have to pay between 0% and 100% of their unsecured debt through a Chapter 13 plan. An individual’s income and assets are factors that help determine the amount that has to be paid to unsecured creditors in a Chapter 13 plan.
If a couple has all unsecured debt and wants it discharged in a Chapter 7, they should file for bankruptcy before or during the divorce proceedings, if they qualify together. The benefit is the couple saves on attorney’s fees and filing fees. The Court charges the same filing fee whether the case is filed joint or single. Most attorney’s charge very similar fees on Chapter 7 cases whether the case is joint or single. Also, many couples are cosigned on debt together. If only one spouse files for bankruptcy and the other spouse is cosigned on the debt, the other spouse will be responsible for the debt if they do not also file for bankruptcy.
If the couple does not qualify for a Chapter 7 bankruptcy with both incomes included, they can either wait until after the divorce is final or wait until they are living in separate households. When determining whether a person qualifies for a Chapter 7 bankruptcy, one must look at the household income. If one is married but separated from their spouse, they can filed married with a declaration of separate households.
Filing for a bankruptcy during a divorce will hold up a property division until it has been determined that there are no assets or the assets have been liquidated for the creditors in the Chapter 7 bankruptcy. Division of property in a divorce includes the division of debts. If one or both of the parties file bankruptcy it often helps resolve the issue of the division of debt. When debts are divided in property divisions, the creditors are not involved and the original loan documents are not altered. If there is a default in payment, the creditor will pursue the person on the loan documents, not the person responsible through the divorce decree. A bankruptcy does not hold up the determination of child support or alimony.
If there is a impeding or pending divorce, I do not suggest filing a joint Chapter 13 bankruptcy. Since the Chapter 13 bankruptcy is a repayment plan, it would have to be determined who is to make the monthly Chapter 13 payment after the divorce is initiated and the monies are no longer comingled. Also, many times after a divorce the parties want their debts to be handled differently and there could be a conflict of interest with an attorney representing both parties.
Financial stress is one of the leading causes of divorce and bankruptcy!
Could Your Employer Use $8,600? Tips for Managing the Cost of Divorce in the Workplace
February 2, 2012 Leave a Comment
Jennifer Keaton is an attorney and mediator.
Recently, Deborah Moskovitch, an attorney and divorce expert, recently published an article in the Canadian HRReporter entitled, “Helping an Employee through Divorce.” Her article notes that an employee who is going through a divorce impacts the workplace to the tune of about $8,600! Common sense certainly tells us that the divorce process usually results in a distracted and less productive employee, so that figure appears credible.
What can an employer do to help an employee who is facing the uncertainty and stress of the divorce process? Paying for the divorce attorney is out of the question, but there are practical things that supervisors can do to help the situation. Among Ms. Moskovitch’s tips is the age old rule of thumb: keep a professional distance.
She posits that when a supervisor discloses personal information, he or she not only contributes to the distraction, but also may deter the employee from getting the professional services (psychological, financial, and/or legal) that truly are needed. When an employee looks to others in the workplace who have been through divorce, there is a risk that the employee will rely on that information and come back for more.
The bottom line is that keeping the personal matters out of the workplace is impossible, but it can be minimized and minimized in a manner that does not have to be cold-hearted.
Workplace Investigation Sins 6 and 7: Failing to Protect the Process
January 10, 2012 Leave a Comment
Jennifer Keaton is a Workplace Investigator with One Mediation.
A recent article detailed 5 “sins” of a workplace investigation. The article details five requisite skills for interviewing individuals, but it admittedly does not provide an exhaustive account of all the deadly sins.
Adding two more sins to this article, to make a complete “Seven Deadly Sins,” must include (6) not advising employee witnesses of anti-retaliation provisions that exist and (7) requesting that employee witnesses not discuss the investigation with other employees and to advise the investigator if someone does discuss the investigation with them (while it is pending).
Advising witnesses about retaliation protections provides some assurance that participating in the investigation will not bring some measure of hardship or retribution on them, at least not without the threat of recourse. This step is often a critical step to establishing rapport and obtaining cooperation from a witness.
Where an investigation requires multiple days’ of interviews and credibility determinations are a concern, an investigator should take steps to assure that witnesses do not influence the information solicited by the investigator. One means to mitigate such influence is for an investigator to request (or have an employer direct an employee) not to discuss or communicate about the interview or the investigation with other individuals, at least until the investigation is complete, and to inform the investigator of any individuals who do discuss it with them or attempt to discuss it with them. For some witnesses, the request is a relief as they can “blame” the investigator for their disinterest in discussing the matter with other employees or individuals. This kind of gag order also is effective in promoting accountability because it lets the interviewee know that someone else may “tell on them” if they discuss the interview.
Finally, if the investigator receives any reports of discussions of the investigation or the interview, it may factor into credibility determinations of witnesses and help illuminate certain motivations. If an accused harasser, for example, spends time telling individuals what they “should say,” ”better say,” or even asks what the interviewee “plans to say,” this conduct could constitute witness intimidation. It may also suggest that the accused is trying to influence the outcome of the investigation, which may demonstrate retaliatory motives or admissions of misconduct.
All told, a workplace investigators who fail to protect the investigation process may find that the investigation is compromised or otherwise ineffective. Good pre-planning with regard to an investigation can assist an investigator with avoiding such fatal flaws.
Workplace Investigation training is critical to an investigator providing a proper and professional investigation. One Mediation’s Workplace Investigation Training Modules provide a deep dive into the investigative process (Module I) and experiential learning opportunity (Module II) that provide a strong foundation for investigators in these areas. It is offered two-times per year.
Retaliation Claims: The Interesting Statistics
January 9, 2012 Leave a Comment
Janice Harper, an anthropologist, recently published an article that highlights several interesting statistics uncovered by the Ethics Resource Center about Whistleblower claims.
One stat of interest is the fact that 39% of whistleblowers’ initial complaints were not investigated by the employer. That stat, when taken together with retaliatory conduct towards the whistleblower, suggests that perhaps a reason for the employer’s lack of concern and action was precisely due to the fact that it already knew the complaint was legitimate and true, but an undesirable truth. Hence, the effort to avoid the reality and to sweep it under the rug.
The proliferation of employment laws over the past twenty years have begun to automatically come with anti-retaliation provisions in them. Indeed, in the civil rights context, the Equal Employment Opportunity Commission’s statistics demonstrate significant increases in the filing of retaliation charges by employees. This trend is evident in other contexts, as well.
The rise of retaliation claims has resulted in some employers taking employee complaints more seriously and taking the additional time to review them, even those they believe are entirely contrived. The reason? There are many, but some of the more common reasons include the attempt by employers to identify problems early and fix them before matters escalate to litigation and the attempt to create a demonstrable pattern of taking issues seriously (rather than appearing to be the broom-wielding employer that sweeps concerns under the rug).
Due to this trend, employers have begun cross training their in-house counsel, risk managers, and HR professionals to conduct proper investigations of employee concerns and complaints. Additionally, external workplace investigators have also become more common, the recent creation of the Association of Workplace Investigators is an indicator of this growing industry.
In Georgia, employers typically turn to attorneys as external investigators into workplace complaints. These attorneys, some of whom have joined One Mediation, are well qualified in being able to quickly respond to an employee’s concerns in an impartial and well-documented and reasoned fashion. The use of independent workplace investigators with employee concerns and complaints has gained increasing acceptance as a justifiable business expense for a variety of reasons that go well beyond litigation concerns and extend to increased morale, retention of skilled employees, and economic growth potential.
Workplace Investigations: When? Who? What? But, most of all: How?
January 5, 2012 1 Comment
Lorene Schaefer, Esq., Workplace Investigator in Atlanta, Georgia
Employees have exerted leverage upon employers to “take note” when they raise concerns about discrimination, harassment, retaliation and more.
Recently, the Association of Workplace Investigators was established – an entity that began as a California-focused entity that quickly became a national organization. What’s the rush? Employers are finding that it is not only a good practice to review personnel complaints for morale purposes, but also as a means to potentially reduce liability risks (whether with regard to the complaint at hand or to demonstrate a pattern of taking employee complaints seriously).
Articles abound on when to conduct an internal investigation, who should conduct an internal investigation, what should be investigated, but these articles invariably note that a critical factor of HOW these investigations are conducted is often overlooked. Many workplaces do not have an employee who has the skills or know-how to conduct a proper investigation. Due to this fact, many employers looked to lawyers or Private Investigators to conduct them. Later, HR consultants also marketed investigative services. Generally, it was happenstance as to who could or should conduct an internal workplace investigation.
With states beginning to regulate this “industry” or workplace investigators and the establishment of professional organizations to help enhance the skills, knowledge, and standards of these services, employers arguably have greater guidance in ensuring that they respond well to employee complaints. However, employers should also be exploring who within their organizations would benefit from greater training in order to conduct a workplace investigation. Not only does the Association of Workplace Investigators provide training, but other entities such as SHRM and One Mediation, provide workplace investigation training.
Risk Managers, HR professionals, attorneys and security professionals whose practices address workplace matters should add this training to their resume not only to enhance their credentials, but to ensure that their services reflect the industry standards that are being established.
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