Divorce

November 2007 - Posts

Do I Need A Divorce Lawyer?
Good question, we hear that a lot, can I not just do the divorce on my own?  Can I represent my case and my divorce myself in court?   So when do you need a divorce lawyers help? It kind of is a no brainer, you know you need a lawyer for certain things, if you have been arrested, getting sued, if you have been charged with a certain crime; yes these are really good times to have a lawyer at hand, these are times that you may just be able to get through a legal battle on your own without a lawyer by your side.  A divorce is too, of course you can file for a divorce on your own, and you can handle your own divorce, but just remember one thing, when representing your self there is a saying, and that saying goes you might have a fool for a client.  A lawyer has expertise and is good and resolving certain situations, they are good at advice and talking to a judge, where on hand we may not be.  Getting up and saying I deserve this and I deserve that in your own divorce in court may not be the thing to do.  This is why a divorce lawyer is handy, you give them your past information and life, they can word things, that can save you having to go back to court a second time and knowing then you should have hired divorce lawyer the first time around.  A divorce lawyer saves you heart ache, *MORE* stress; they handle the situation for you, less money in the long run, and probably a lot more time! OK so there is a good question to ask when you are perusing a divorce, and these are some questions you need to ask yourself.  With the question do I need a divorce lawyer, so let’s take a moment to look at some of these?
  1. What is at stake?
  2. Is there an estate?
  3. Are there kids involved?
  4. Is there a lot of unpaid debt?
 The list can keep going and going and there are several more to add, but that is a highlight of a few that you need to ask yourself, with a divorce lawyers expertise, you can get what you need and the future can be much more stable then if you decided to do the divorce all by yourself.  Even still if you are thinking of doing the divorce yourself, it really never hurts to at least talk to a lawyer, most of your initial visits are free, and maybe they can give you some pointers and advice, on what they see is involved in the divorce.  Take the time to think about doing the divorce yourself.  If you’re in a hurry and think you can get through it quicker doing it yourself, you could jeopardize your future.  A divorce is high stress times…..take time to talk to a lawyer.

 

Posted: Nov 30 2007, 08:06 AM by Divorce | with no comments
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Loving Your Divorce Lawyer.

I have stressed before how important it is to have a great divorce lawyer. Finding the right lawyer can just save years of heartache and probably going back to court because something was not brought up or thought about in round one. One a divorce lawyer should bring a since of comfort, strength in such a horrible time and knowledge of what is going on. Your divorce lawyer should be a caring person also and somebody you can confide in, but falling in love with your divorce lawyer is not a wise decision, you need to stay in control of what is really going on in your life.

One thing I must stress though is for you to be aware of how vulnerable you may be in this time. It is very possible for you to fall in love with your divorce lawyer. There can be arguments about this issue. Lawyers sometimes do not realize how much power they have over their clients. It is stressed for lawyers never to abuse this power. So finding a lawyer that you can confide in without feeling vulnerable with them is important.

I am not saying that every lawyer is going to be like this, so doing some background checking on your lawyer is important. You need to find a divorce lawyer that has handled and been through divorces cases hundreds of time, they need to be calm and also in charge, but you should never feel that you are in a crises with your lawyer.

Take a moment to also look at why your romantic feelings towards your lawyer can not be real, and never let a lawyer play that they love you at any time. Of course at any moment you can change your divorce lawyer, but in the long run its going to cost you money so doing some research on your lawyer is so very important, so you don’t get caught up in a whirlwind of power by the divorce lawyer you grabbed to get through it as quick as possible, sometimes it can be better if things take longer, so every aspect is covered.

You are going through a divorce, yes a divorce and in that you stressed and very vulnerable so stay in charge of what your real feelings are, yes we do feel at times that any kind of attention is love, especially if we have just been left by someone we thought loved us, but your going through a high stress time in your life. There is much time for love after your divorce, with the right person. Again I am not suggesting that all lawyers are going to make you feel vulnerable in that way.

We do really all need to be reminded and sometimes this does come up in a divorce, some lawyers are not understanding to it, and play on vulnerable people for a little fun. This blog is to remind you that research and background is good to be checked, to see how many divorces your lawyer has handled and the outcome. Most lawyers are not predators but sometimes their kind nature can bring on clouded judgments on your part; and also this blog is for you remember that you are going through a divorce, so stay in control of your mind, and focus on your future and not the moment, just because you feel lonely!
Posted: Nov 29 2007, 05:55 AM by Divorce | with no comments
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Divorce Mediation.
It does seem like it is new, divorce mediation, but sometimes people need the extra help; if you’re fighting and upset with each other, a divorce mediator can be just what a divorcing couple need, so what are some of the great things about divorce mediation?  Here is a few in the list. 
  1. The first thing is that a mediator can help act as a closer…so what does that mean?  It helps the people in the divorce come to a close on certain things, instead of letting things drag on, they can help *CLOSE* an argument, by giving you the best way to accomplish things.
  2. A divorce mediator should always be neutral between the couple divorcing, not taking sides within an argument but finding ways for you both to resolve things.
  3. A divorce mediator is only voluntary, which means the mediation can end as soon as the parties want it.
  4. Being able to share your stories and information out with each other during mediation allows you to accomplish things, during a mediation a divorce mediator can point out things each person should know about one another to help.
  5. When a divorce mediator is used it helps resolve 50-80% of all cases.  Without a divorce mediator, things would have dragged on, or couples still fighting over things years after.  And remember you can always bring your lawyer to mediation.
Note: we know from years of divorce mediation that couples are more like to be satisfied with the results of a mediation process.  They spend less money and time arguing, and are less likely in the future to go back to court to fight about things they did not receive or get from the divorce. So what is the most important thing about divorce mediation?  Well it helps keep things, along with you and your ex in control of the divorce.  It helps you move on with your life, with less conflict. I would recommend if your divorce is unexpected and you both do not agree with things that mediation is the best process; yes it is also good to have if it is a mutual split also, but if the divorce is not wanted by one of the parties, things could get extremely ugly, or if you have lots of debt and property to settle.  Mediation can save a lot of arguments and help settle things faster.

 

Posted: Nov 26 2007, 08:14 AM by Divorce | with no comments
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Divorce And Bankruptcy.
Divorce and Bankruptcy You have already had your world turned upside down by your divorce and then you find out that your ex has filed for bankruptcy, directly after.  Then this question arises how do you protect yourself and also make sure that the divorce arrangement is honored?  Through a bankruptcy one knows that all depts. are stopped; so what do you do about alimony, child support, back child support and so forth. There are certain debts that will survive a bankruptcy, and we find ex’s to get so upset after they file for bankruptcy after their divorce, thinking that they are just going to get rid of more.  So what does survive a bankruptcy after divorce?  Here is a list under the new bankruptcy abuse prevention act of 2005. 
  1. Alimony
  2. Child Support and unpaid child support, from the past.
  3. Taxes Owed
 Note: it is very important after you find out your ex has filed bankruptcy, after your divorce to file a proof of claim.  This is placed in the bankruptcy courts to receive payment.  So what happens after you divorce and you are owed property settlement, and your ex has filed bankruptcy?  The new law for a chapter 7 states that non support obligations from a divorce are also non dischargeable.  What does dischargeable mean?  It says that your ex is still responsible for it.  If the debt that is owed will hurt the spouse, more then it would hurt the person that owes it. Note: if you do not file a claim after your divorce with the bankruptcy courts then you may not be able to collect it later.  Again this is very important, after your divorce and you find out your ex has filed bankruptcy to file your claims, I can not stress this enough. Although if your ex is filing a chapter 13 it could get a little broader, the debts dischargeable in chapter 13 that is not in chapter 7. So what happens here?  How do you get the debt owed, Will you receive the debt owed to you in a chapter 13?  Well it depends a lot on your state, but there are some questions as. 
  1. What is the over all health of the people involved?
  2. Was there a need at the time of the divorce for support?
  3. Are their children, and are they under the age of 18?
  4. Was the money obligation supposed to have been paid in a lump sum or installments?
  5. Would the money obligation have been terminated at the time of a child turning the age of 18 or a spouse getting remarried?
 

It is very important to look at all these aspects and how soon after the divorce has taken place to when your spouse declares bankruptcy.   Also making the decision to talk to a lawyer on all these matters may be important, it could save yo

Posted: Nov 23 2007, 08:53 AM by Divorce | with no comments
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Divorce Mistakes.
We all make mistakes, but I am here to help give you some pointers, and discuss some common mistakes that people make while planning and going through a divorce. So while going through a divorce, one thing should be done; control your temper and emotions.  If you can not think properly, making mistakes is easier.  As I have discussed in a previous blog, that getting therapy or talking with some one should be done. Here are some divorce mistakes 
  1. Most people divide property up without even knowing what thy have.  So before you start dividing things up, make sure you know what you have, do an assessment, go through and see what you owe and own.
  2. Talking with someone is important, that’s why I say a therapist is at the top of the list, although talking to family or friends is important also, sometimes they can get to involved and tell you what you need or don’t need.  Take time to think about that on your own, it is your divorce, you know what you want.
  3. You need to pay attention to your taxes. It is very important and over half the time ignored.  So years later you can receive a big tax bill.  It can be for the sale of property or capital gain, so pay attention to the tax impact of the decisions you are going to make. 
  4. Some spouses in the divorce try to be generous, in hopes of winning them back.  One wants the divorce, while the other one doesn’t, so they give this person everything, in a fantasy they will get them back; then later realizing what they have done, when it is too late to reverse it.
  5. Yes it is important to find a good lawyer, but do not give up all control, it is just as important for you to be involved. Why? Because you know what you want in the divorce, not the lawyer. 
  6. Make sure that you are not spending too much time letting lawyers gather information that you can be doing, or that you and your spouse can simply exchange. In some cases mediation is needed to help with the sharing of information.
 

Take time to think about all the things you want from the divorce.  Even if you are not the one wanting the divorce, it is important to stay in control of the situation. You do not want to be hurting just as much financially as you are emotionally

Posted: Nov 20 2007, 10:44 AM by Divorce | with no comments
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Some Preperation For A Divorce.
Are you thinking of separating or divorcing your husband or wife?  There are certain steps you should take in this time of your life. They will help you both when it comes time for the divorce..  Here are a few steps you should take before your divorce..
  1. You should open a savings and a checking account.  One this will help you start saving and if there is any money of yours in the joint account, it can easily be transferred when the time is right through the separation or divorce.
  2. If you do not have credit of your own, then you need to apply for such things as credit cards, this allows you to have some credit providers, after the separation or divorce.
  3.  It is also important to look into seeing a therapist or counselor.  You can also choose a family member or a friend at least.  You will need someone to turn to.  Also be honest about your marital problems, and why you want a divorce…..would getting a counselor for both of you, help save anything?
  4. You should at this time also collect an extra copy of certain things to have when you divorce; to show your lawyer.  These should include, deeds, employee benefit info, debt records, tax returns, bank account records, mortgages, investment records etc…..Please put these outside of your home, even with a friend or family, while you still have access to it before the divorce.
  5. If you do not have a job or any type of employment, this is the time to do so.
  6. Health insurance is important, if you do not have any health benefits of your own, this is also a time to do so.  If your spouse does have insurance, you can ask to have coverage until the divorce is final. 
  7. Another is to also make copies of any prenuptial agreements, property shared, and any other agreements and also put these in a safe place outside the home.  With this information a safe deposit box would be a good idea, and again make sure it is in your name.
 I hope some of these tips help you through your separation or divorce.  Some of this information will also be needed to give to your divorce lawyer, and again I can not stress enough, how important it is to find the right one.  In this time, looking and researching for the right divorce lawyer is so very important.  They can also make the process so much less difficult. 

 

Posted: Nov 19 2007, 08:14 AM by Divorce | with no comments
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Divorce Grounds.
What is divorce, well it refers to the legal end of a marriage.  All states have there own governing as to when a divorce may be granted.  There is both fault based divorces and no fault based divorces.  What are some of the fault grounds on which a divorce will be granted?  Here is a list of a few. 
  1. Adultery
  2. Insanity or a mental disorder
  3. Indignities
  4. Desertion
  5. Cruel Treatment
  6. Bigamy
  7. Imprisonment
 There is the no fault grounds for divorce in which both people in the marriage acknowledge that the marriage is broken between the two, and there is no prospect of reconciliation between these two people.  The divorce will be granted if the parties have lived away from each other over a period of two years and it is a broken marriage. So these are a list of a few, and they very from state to state. A divorce lawyer can explain the right options for you and tell you all the rights you have, it is important to find a good lawyer, to help you make the right decisions.  So if you have considered a divorce or if you have been served divorce papers, you are very concerned about your future, also very confused and upset; finding the right lawyer is very important.  The mistakes you can make with out help can impact your future and the final decision in the divorce.  A person can not afford to take chances with custody of your children, possessions of home, and child support.  A decision in a divorce should never be rushed.  It requires guidance and inflection.  Take control of your future and know your rights, research lawyers.  Taking time now will help you in your future.  Do not underestimate having the total value of having a great divorce lawyer on your side. A divorce is a high stress time in any ones life.  

 

Posted: Nov 16 2007, 08:07 AM by Divorce | with no comments
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An application to open a divorce case for a husband's pension.
In many cases a divorce settlement fails to contain terms for the distribution of a husband’s pension.  The result causes much confusion, and very important legal questions arise.  Did the wife make a mistake because she didn’t receive a fair part of her husband’s pension?  Or did the lawyer over look it? Was the omission of the pension agreement intentional?  Or did the wife give up a share of her husband’s pension?  In most cases the only way to answer an array of questions is to have a plenary hearing.   In most cases ex wives do not receive a share of their husband’s pensions.  Most the time they fail to appreciate how valuable a pension can be.  So many times the ex wife is in such a hurry to start up another relationship that the divorce is rushed through.  But, over time when they reach their retirement age, they are looking for some type of support or income.  If this presents its self then a wife can file an application to reopen the divorce case, she can request that the pension is split up even after the divorce case is over.  Here are some important steps the moving party will have to take. 
  1. You will have to have very detailed motion papers prepared.
  2.  A excellent legal brief to convince the courts to reopen the case
  3. You will also have to submit a new CIS.
 In many cases the quality of the motion papers, and who the individual judge is, many judges will rule that the settlement agreement was a contract and shouldn’t be modified, other judges will asses whether the property agreement was reasonable and fair.  The standard of living is also assessed, is the ex wife struggling financially and the ex husband living like a rock star, they the case may be reopened.  Most the time ex wives do not pursue getting a share of the husband’s pension in the divorce.  This mistake comes back to often hurt them.  If these scenarios occur and you can get a judge to hear your case you may have a chance to reopen the divorce case, Courts do not want ex wives to supper financially.   If the divorce case is reopened in an omitted pension scenario then the parties will have to have the pension valued b a actuary. The actuary will determine the share of the pension that was gained during the marriage and asses the monthly pension check.  Reading over this blog makes you again realize how important it is to find the right lawyer, one that will look over every aspect of your life and marriage, so that you don’t have to go back. 

 

Posted: Nov 13 2007, 09:01 AM by Divorce | with no comments
Can A Divorce Case Be Reopened?
One of the questions that does come up on divorce is can I reopen my divorce case?  Some people think they receive a really bad deal and settlement.  This is why it is so important to research your lawyer more, it may help you, years of experience is important. The application to reopen a divorce case is if you can present there being fraud, a misconduct or mistaken negotiations.  Also if you can show any unfairness in the divorce agreement.  It is also very difficult to prevail any time you reopen a divorce case.  You can simply not claim a mistake or just say that the agreement is unfair.  There has to be hard proof in the divorce agreement that there was a major mistake, fraud or deceit.  The application has a major burden to convince a court to reopen a divorce case.  In the family court, there is a predisposition that enforces any divorce agreement.  Although there is countervailing doctrine that says all divorce agreements must be equitable and just. In other cases it is very possible for a person to reopen a divorce case if they need help with clarifying some terms on the settlement agreement on property.  A lot of times these agreements are poorly drafted and confusing to read.  Most the time after a divorce couples are very bitter towards one another and it is impossible to discuss anything on the agreement issues.  The post judgment aspects of the divorce are more contested that the divorce itself.  So if the property settlement is confusing and does not give proper guidance then a person can file a motion with family court to reopen the case.  This is called a reformation of the divorce agreement; it is not a modification of the divorce judgment, but merely recognition by the court that the settlement and property agreement does not accurately express all the terms of the divorce.  It can also be reopened if the property settlement missed important terms or has significant gaps.  In most cases it’s that the parties fail to distribute their assets.  The parties also fail to agree on how the credit card debt will be paid.  Many people do not think properly during a divorce case, and then after it’s over, realize the divorce settlement has many holes in it. In any case, this is why choosing the right lawyer is important, finding a law firm that is committed to providing you with the best service are important, especially in this time when you may not be thinking correctly.  Your attorney should have special training in the field of collaborative law, which helps parties in resolving the differences.

 

Posted: Nov 12 2007, 08:04 AM by Divorce | with no comments
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