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.
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.
Employment Lawsuits: When they are bad, they are really bad.
January 3, 2012 Leave a Comment
Employment lawsuits often involve matters such as pay and wrongful terminations. But some suits are much more compelling than others…even making the Headlines. Case in point: Skechers.
Employers sometimes learn the hard way that personalizing a termination can create a slew of bad press and viable legal claims. What attorney would not want the case where the big-bad-employer appears to pick on the employee even after it’s kicked the employee to the curb? Those “insult-to-injury” claims are the cases that can really tick off a jury!
With Skechers, the allegations appear to be that it terminated a marketing executive for “allowing” a recently departed employee purchase Skecher shoes with an “employee discount.” The sin appears to be that the former exec either knew about the post-employment purchase or should have known about it. As a result, the exec received her pink slip.
One can only imagine what a true audit on the usage of the employee discount would demonstrate…
In any event, the “insult to injury” was that when the exec landed a new job, her reference at Skechers threw her under the bus. The new job evaporated.
While Skechers may have told the new employer the truth, the whole truth and nothing but the truth, holding its tongue arguably would have been a far more prudent path. Indeed, many employers have policies that forbid the provision of references or any other information beyond “dates of employment and last job title.” The reason: less liability risk.
With the expansion of whistleblower protections, employers must either train its employees on the ramifications of providing opinion-based statements that could be later used as evidence of retaliation by even a former employee. Some of these anti-retaliation provisions in workplace laws are not only permitting liability to accrue against the employer, but also are permitting individual liability against the “speaker.”
Silence, often, is golden.
Atlanta – Divorce Seminar 1/21/12 with FREE Consultations with Financial Professionals and Attorneys!
December 22, 2011 Leave a Comment
Legal & Financial Divorce Seminar & Consultations
An educational, supportive one-day workshop for those seeking help
in any stage of divorce, with information, resources, and connections.
Saturday, January 21, 2012, 9:00 AM – 4:00 PM
LOCATION: The South Terraces, First Floor Auditorium
115 Perimeter Center Place, Atlanta, GA 30346
Free parking garage
Visions’ office phone, 770-953-2882, will be answered all day.
$89.00 – Breakfast & Lunch Included
Registration Closes midnight Friday, January 13, 2012
Register at www.visionsanew.org or call 770-953-2882
Top Notch Professionals Educate About Divorce:
¨ “The Legal Divorce Process”
¨ “Understanding the Finances of Divorce”
¨ “A Private Investigator Shares Secrets”
¨ “How to Separate the Emotions from the Business”
¨ “Kids and Divorce”
Includes 30 minutes, one-on-one, with both a legal and financial professional:
- Completed application required at check-in to schedule
- Receive 30 minute one-on-one legal & financial assessments of your situation
- Be prepared to talk factually about your income, assets, and liabilities
Visions Anew Institute is a 501c3 nonprofit, connecting those seeking help, in any stage of divorce, with information, resources, and each other through Weekend Workshops, Seminars, and Support Groups. We are grateful to the sponsors and donors who make our programs possible, especially Ruby Sponsors: the law firm, Boyd, Collar, Nolen & Tuggle, LLC; Peggy Espinda LaFreniere and Emerald Sponsor: Anonymous Alum of Weekend Workshop #29.
Three Tips on Split/ting the 401(k) in Divorce
December 22, 2011 Leave a Comment
Forget the emotional workout that divorce provides….watch out for the paperwork workout!
Ask someone who’s been through divorce: There is a lot of searching, collecting, requesting, gathering, compiling and more that must be done! This drill also extends to pensions and certain retirement accounts, such as 401(k)’s.
Also ask a divorcee how much of the legal bill involved requests for documents, follow-up on those requests, and plain old nagging…the number will probably astound you! So, how can you address the 401(k)’s proactively to get at the paperwork workout without incurring legal fees associated with nagging? Here are three tips:
1. Call the 401(k)’s “Plan Administrator.” Ask the employer with whom each 401(k) is associated for the Plan Administrator’s number (usually, this involves calling HR – don’t hesitate to call HR, they get these kinds of calls all of the time). From the Plan Administrator, request and follow-up with an email these three items: the 401(k)’s guidelines for preparing the QDRO (sounds like “quad-row”), a model copy of a QDRO for this 401(k) and any fee structures for filing a model QDRO instead of a non-form QDRO, and any checklist associated with preparing a QDRO for this 401(k). Do this early and for every 401(k) (or even any pension) that either spouse holds.
2. Contact a CPA, a Financial Planner, or a Tax Attorney (and maybe even a CDFA) about the tax consequences and liabilities. Ask your CPA and your financial planner for advice. Your age, income bracket, and the kinds of assets in the 401(k) can affect how both spouses may view the 401(k). For example, a 401(k) may have a “liquidated value” of $50,000 (what the financial statement usually reflects). However, what is not reflected in that number is what Uncle Sam is going to take if you DO liquidate the account. Suddenly, that $50,000 could plummet to $30,000.00 if you don’t play your cards correctly! Know what you’re doing before you do it!
3. Assess the 401(k) as one piece of the bigger puzzle of dividing the marital estate. Before you negotiate a division of property, understand what it might mean to keep the 401(k) intact and what it might mean to divide it into two parts of various sizes. Would it make sense for one spouse to keep all of the equity in the house while the other spouse keeps the 401(k) “as is” (and avoid fees associated with drafting and filing a QDRO, as well)? Would it make sense to give a portion of the 401(k) to the other spouse in exchange for larger helpings of something else in the marital estate (keep the boat and the lake house)? There is some good news with 401(k)’s providing greater options and opportunities for dividing the marital assets.
The bottom line is that the paperwork burden in divorce alone can be overwhelming. What those documents mean may seem completely out of reach when you are on a litigation timeline. As such, plan ahead to take small bites at it, and you will be more confident, more prepared, and more willing to move forward without unnecessary self-doubt (and paying a law firm to nag you).
One Mediation
One Mediation provides a broad scope of
neutral services that include traditional
mediation and arbitration, but also provides
neutrals to preside over grievance hearings and
investigators for non-surveillance
investigations.
