Archive for May, 2009

Divorce Attorney Fees

Thursday, May 28th, 2009

When you telephone to make an appointment to meet with an attorney, ask if there is a charge for the initial consultation and be prepared to pay at the appointment if there is a charge. In many communities, free initial consultations are a thing of the past for experienced divorce practitioners. One of the reasons for this is that the initial appointment can often last an hour or more, depending on how many questions you ask and much you need to tell the lawyer at first blush. In addition, once you have consulted with the lawyer, the lawyer cannot then represent your spouse because it would present a conflict of interest for the lawyer.

 

Often, less experienced practitioners will not charge an initial consultation fee, or even a retainer fee. In some cases, that’s because have not built up a clientele, and would like to encourage business. In other cases, they are simply less experienced. It’s hard to know whether a less experienced lawyer is going to do an extra good job on your case to develop a good reputation and encourage referrals, or whether the less experienced lawyer simply won’t know enough to handle your case effectively. That’s why it helps to get references from friends, family, other lawyers, and the local Bar Association.

 

Once you have hired a lawyer, ask for a written fee agreement. Most states require that this be done, but even if it’s not required, it helps to have in writing how much money the lawyer needs to get started on your case, how fees will be billed, what kinds of services you’ll be charged for, such as telephone calls or photocopying, at what hourly rate you’ll be charged, and what will be required if the retainer fee runs out. Your lawyer should also send you a monthly itemized bill so that you can keep track of your retainer, and the amount of time your lawyer is spending doing different tasks associated with your case.

 

If you are worried about your finances, see http://www.peace-talks.com/finformation.php. For a cost comparison of mediation and litigation, see http://www.peace-talks.com/compare.php.

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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How to Find the Right Lawyer

Tuesday, May 26th, 2009

Among the many qualified family lawyers in your community, choosing the right lawyer for your particular circumstances is crucial. In most states, the family laws are not terribly complicated, but the details of how those laws might apply to you and your individual family situation can get tricky. Although many lawyers who are general practitioners do a fine job with divorces, your best bet is to hire a lawyer who specializes in family law. That person is more likely to be up to date on the most recent changes in the law, tax ramifications, the finer points of your states’ divorce laws, as well as the personalities of the judges and courthouse personnel in your area. In addition, that person will spend most of his or her time in domestic court, and your chances of having your matter expedited are improved because your lawyer may be more available to you.

 

Although the law itself may occupy relative few pages in the law books, tricky issues such as whether an inheritance or gift from your family is a marital asset, how best to handle disputes pertaining to children, and how to divide up assets such as pensions are best handled by the specialist practitioner. For more information about divorce in general, which may help you have more confidence in your choice, see http://www.peace-talks.com/divorceinformation.php.

 

Your local bar association has a lawyer referral service. You could also ask your therapist or accountant for a referral. If you know a lawyer, ask him or her for a referral. Lawyers tend to know who among them is the most talented, and most will refer you to someone they respect. Speak to friends or family members who have gone through a divorce for referrals.

 

Remember, however, that the way that person reacted to the process may influence whether he or she gives a lawyer a good review.

 

What should you be looking for in a lawyer?  Obviously, you want to select a lawyer that knows as much as possible about family law in your state. The manner in which the lawyer conducts the interview will tell you a great deal about that, but don’t be afraid to ask questions:

  1. How long have you been practicing in this state?  What portion of your practice is family law?  How do you keep current on changes in the law, taxes, and emerging issues like stock options?
  2. What is your policy on returning telephone calls, fees and billing?   How much will it cost?
  3. How long will this take? What is the basic process?
  4. How is support determined?   What if we can’t resolve custody or visitation?
  5. How do you feel about working with mediators?
  6. What percentage of your cases are resolved without having to go to trial?  If the lawyer tells you that more than 5% of his or her cases end up in a trial, beware. A good, ethical lawyer is able to settle most cases.

Have a list of questions ready to ask your lawyer at the initial appointment. Pay attention to how you lawyer responds to your questions. Does he or she treat your inquiries with respect? Do you get a complete answer in terms that you understand?  If he or she doesn’t know the answer, does the lawyer admit it, and offer to get back to you — and does he or she follow through?  The way in which the lawyer responds tells you a great deal about how the lawyer operates, and how you’ll be treated as your case goes on.

 

Choose a lawyer who is responsive to your questions and needs. Divorce is a very personal process. You are living with the choices that you make in your case. Your lawyer is not. A good lawyer is also a good listener, explainer, advocate, negotiator, and barometer of the pros and cons of the decisions you’ll have to make in your case. If your lawyer doesn’t have time or patience to answer your questions or to explain the legal process to you, then you shouldn’t hire this person. More information is also available at our resource center, http://www.peace-talks.com/resources.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

 

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How do I Find, Choose and Use a Lawyer

Thursday, May 21st, 2009

Some people prefer to use a lawyer in their divorce case. Aside from preference, it’s best to be represented by a lawyer from start to finish in your case if you have unresolved custody issues, or if you not have equal bargaining power with your spouse. A good example of this is a spouse who has been dominated or abused by the other spouse. If threats figure into your marriage, you’ll probably need a lawyer in your divorce.

 

Most people fall someplace in between not needing a lawyer at all, and needing to have a lawyer handle the entire case. It’s always a good idea to be informed about your legal rights, and an initial consultation with a divorce lawyer is typically either free or reasonably priced. It’s worth it to find out your state’s child support laws, position on alimony, tax ramifications of your possible asset division and support scenarios, and factors which determine property division. You can consult with several lawyers to get several opinions.

             

You may also be able to find a lawyer who would be willing to review a final agreement or mediation proposal, and to discuss the concrete terms with you in the context of what you are entitled to under your state’s laws, on an hourly basis rather than representing you fully. Of course, such a lawyer will not be as intimately familiar with your individual circumstances as he or she would be if representing you throughout your case, but an ongoing consultation relationship with a lawyer will keep you abreast of the laws and general considerations which affect you. You can then supplement this information with research on your own at the local law library, or with an accountant. For more information about divorce that may help you with your lawyer selection, see http://www.peace-talks.com/divorceinformation.php.

 

You may also wish to hire a lawyer to represent you fully while you pursue different negotiation alternatives. This is a popular divorce attorney/client relationship because it keeps you under the protection of an attorney, yet it allows you to try and resolve your case on your own to the extent you can do so. As issues are resolved outside of the attorney’s office, you can discuss the agreements with your attorney to be sure that they’re fair given your particular circumstances and the law which applies to your case. If you intend to pursue mediation or other out-of-court settlement methods with your spouse, be clear with your lawyer that you don’t want conflicts to escalate in court unless absolutely necessary. Oftentimes clients feel more comfortable having an attorney “on retainer” so that they can call and ask questions, make appointments, or have court papers filed upon request, without having to re-establish a relationship each time a service is needed. If you would like to do more research through reading, a list of good divorce books is available at http://www.peace-talks.com/books.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

 

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Mediation Basics

Monday, May 18th, 2009

If you are considering mediation as an option for your divorce, it may be helpful for you to know the very basics of what mediation consists of. If you choose to mediate your divorce, the mediator typically will contract for a certain number of sessions, or a specific time period. A fee will be determined and set, and usually billed by the hour. Both parties should be encouraged to speak with a lawyer so that they each understand the legal options available, and whether or not the mediation is proceeding in a way which is fair for him or for her. For a comparison of mediation and litigation, see http://www.peace-talks.com/compare.php.

 

Once the agreement, or partial agreement, is finalized, both parties are encouraged to have a lawyer review it, and formalize it for the court to review and approve. Be cautious about agreeing to a mediated settlement that is not examined by an attorney. Some mediators accept the parties’ decisions without informing them about potential unfairness to either party. Whether it is best to reach an uncontested settlement or to have an agreement that is beneficial to both parties in the long term is a matter of personal preference, but it is one that should be carefully considered to avoid regrets at a later date. For a host of information about divorce in general, see http://www.peace-talks.com/resources.php.

 

An uncontested divorce date is set, both parties appear in court, the judge reviews and approves the agreement. If the judge does not approve the agreement, then it’s back to the mediator, or a review with an attorney, but typically mediated agreements are approved by the court without modifications.

 

In the past 20 years, more and more courts have set up alternative dispute resolution procedures. Family Relations Offices, Mediation Services, Judicial Pretrial Procedures, Conciliation Services, and special mediation programs exist throughout the country to help divorcing couples resolve their disputes outside of court. Oftentimes these programs are free of charge, or operate on a sliding scale, and may be an alternative to private mediation services.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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How do I Find, Choose and Use a Mediator

Thursday, May 14th, 2009

Typically, both parties will choose a mediation service. This may be a therapist, a lawyer, or both. Who you select depends upon the issues you wish to mediate. Issues about children are often best mediated by a mental health professional, while economic issues may best be mediated by an attorney. Both attorneys and therapists may be trained to mediate all issues, but be careful to select a professional based on experience and expertise. Mediation training isn’t licensed or regulated in all states, and the title “mediator” may be used by anyone, irrespective of background or training. If you are still trying to decide between mediation and getting an attorney, see http://www.peace-talks.com/proscons.php.

 

Ask a lawyer or mental health professional you trust for recommendations, look in the yellow pages, or call the Academy of Family Mediators at (781) 674-2663, for a list of members in your state.

 

Ask questions to determine if the mediator’s style fits your needs and if he or she is qualified to mediate your case. Consider asking:

 

  1. What is your style of mediation? Do you see couples separately or together? How long do you expect a typical mediation to take?
  2. How many mediations have you performed? How long have you been a mediator?
  3. Have you been through any special training? What kind of training have you had, in addition to mediation certification? (Mental health, child expertise, family law experience, economic expertise in matters of real estate, investments, pensions, etc, specific tax knowledge).
  4. Consider: If the mediator is a therapist, how does he or she keep up with the law?  Is the mediator affiliated with a lawyer or group of lawyers?   If the mediator is a lawyer, does he or she understand the psychological implications and dynamics of negotiating a divorce?  Given that lawyers are professionally trained to argue, how has the mediator overcome that original bias? Is he or she affiliated with a therapist or therapy groups?
  5. How do you work with spouses who retain individual attorneys?
  6. What is the initial fee, are phone calls billed and charged, what is the hourly rate and is there a retainer? Who is responsible for paying? Is there a special division of fees if one spouse calls without the other’s knowledge? If either of you wishes to cease the mediation process, how will that be handled?
  7. What does the mediator recommend if the mediation process breaks down?
  8. How are other referrals made to professionals such as: accountants, individual therapists, and attorneys?
  9. How is confidentiality handled? 
  10. Is the mediator willing to testify in court under any circumstance?  Is there a written agreement as to whether or not the mediator may testify, so that there are no misunderstandings?

For a host of resources on divorce in general, be sure to visit our resource center at http://www.peace-talks.com/resources.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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What is Mediation?

Tuesday, May 12th, 2009

Mediation is designed to help you and your spouse resolve issues without having to involve a court in your decision making process. It can save money, time, and hurt feelings. If you want to do your divorce without hiring a lawyer, you may especially want to consider mediation. In addition, many lawyers are “mediation friendly”, meaning that they will cooperate with your mediator and keep the court process to a bare minimum while you work through your issues in mediation.

 

Mediation is becoming increasingly popular as a method for resolving disputes concerning custody, asset division, and child support. In addition to saving money, time, and stress, it allows families to fashion their own court orders tailored to their unique circumstances. Because there are not court pressures to resolve the case within a specific amount of time, mediation sessions can be scheduled at your convenience. And, if you need more information about a specific topic, such as taxes or your children’s visitation needs, you can bring an accountant or psychologist into your mediation session. If you are trying to choose between mediation and getting an attorney, see  http://www.peace-talks.com/proscons.php.

 

Research indicates that it is a cheaper, faster, and less adversarial way to approach the end of a marriage or a custody negotiation compared to court intervention. It also tends to result in fewer returns to court for modifications after divorce. Most parties report high satisfaction with the process, and despite myths to the contrary, it is not more advantageous for either women or men. Partners who opt for mediation tend to select joint legal custody more often than spouses who utilize the court system, partly because of how well the partners got along to begin with, partly because of a slight bias among mediators toward joint custody, and partly because mediation helps parents learn to communicate. Mediation can be handled in a variety of forums, with a variety of professionals assisting.

 

Basically, a trained mediator acts as an impartial third party and assists in reaching resolution on relevant issues in the divorce. The mediator serves as a master communicator, referee and problem solver, working to balance both parties’ interests and to assist them in reaching fair decisions. A mediation need not resolve every issue: you can choose to consult a mediator to resolve custody and visitation issues, but not asset division. Or, you could decide to mediate asset division, but not child support and alimony. Mediation at least helps narrow the focus of the problems and lets you resolve what you can prior to court intervention. Even if you are only partially successful in mediation, the process enables you to keep much of the divorce in your own hands. For a comparison of the cost of a mediated or litigated divorce, see  http://www.peace-talks.com/compare.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Pro Se…On My Own

Friday, May 8th, 2009

You aren’t required to hire a lawyer to handle your case. Filing a divorce without the help of a lawyer is called Pro Se or In Pro Per, which is Latin for “on one’s own”. If you don’t have children or issues such as alimony or property settlement in dispute, filing a pro se divorce can be an effective and economical way to end your marriage. Although you can file without a lawyer, the court will hold you to the proper procedures for filing a divorce. You must follow each of the court’s rules and procedures exactly, so it’s important to educate yourself about the process. The court clerk’s office can help, and many community groups offer seminars on filing your divorce. If you need help getting started, visit our resource center at  http://www.peace-talks.com/resources.php.

 

If you have questions about your rights, tax ramifications of property settlement, or you are in an unequal bargaining position with your spouse, you should consult with an attorney. You don’t necessarily need to hire an attorney, but you do need to be informed about what you’re entitled to have after the divorce is finished. This advice needs to come from a qualified professional–not your spouse, a neighbor, or a divorced co-worker. Guilt, confusion, and feelings of powerlessness can lead you to make poor decisions, and divorce decisions will be with you the rest of your life. It’s worthwhile to at least consult with a qualified professional. A lawyer can tell you the pros and cons of using an attorney or going pro se in your particular case, to help you decide whether or not an attorney is necessary. And, if you decide during your pro se divorce case that you need an attorney’s help, you can hire an attorney at any time before your case is concluded. Since cost is a factor, be sure to see a divorce cost comparison at http://www.peace-talks.com/compare.php.

 

If, after consultation, you decide that a lawyer is not necessary, you can learn how to file a divorce on your own. There are “do it yourself” divorce books in each state. Be mindful to select a book which is written specifically for your state’s laws and procedures, as they do vary from state to state. You can find these books through your local courthouse clerk’s office, your courthouse’s law library, a local law school’s library, your local bookstore, or the internet. Although the exact procedures vary across states, they all follow the same basic steps. For good book on divorce, also see http://www.peace-talks.com/books.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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What Are My Options for Divorce Representation?

Wednesday, May 6th, 2009

Your decision to divorce will involve choosing the type of representation you feel you need. How you divorce will have a large impact on how the divorce impacts you, your spouse and your family. If you are looking for more information, be sure to see our resource center at http://www.peace-talks.com/divorceinformation.php.

In most states there are several options:

 

Pro Se or In Pro Per divorce: you can handle the divorce yourself, without the help of an attorney, or hire an attorney only to review your settlement but not represent you in court.

 

Mediation:  you can use a mediator or arbitrator to settle the case, and either go pro se or hire an attorney to file the papers, review the settlement, and escort you to court for the final uncontested court judgment.

 

Hiring an attorney: you can hire an attorney to represent you in court, from start to finish

 

You can use any or all 3 of these methods in any combination. These days, many people represent themselves or settle cases in mediation rather than hiring an attorney and proceeding to court. As attorney fees rise and court case loads allow less and less time for each case, many people find that settling the matter between themselves saves time, money, and aggravation.

 

If you are trying to choose between mediation and getting an attorney, see http://www.peace-talks.com/proscons.php.

 

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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Accepting an Unfair Settlement

Monday, May 4th, 2009

It is especially painful when you know that the offer on the table is unfair, and that the other person knows you will not fight much further because he or she is more willing than you to sacrifice your own sanity and your children’s interests. This is one of the most fraught situations for all involved, because the client gets angry at his or her attorney and the system for the inherent unfairness. The system can protect you from the extremes of abuse, but it cannot always protect you from a selfish and manipulative spouse. Nor can a lawyer deflect such behavior. In these situations, realize that you chose to marry and/or have children with the person who could act this way. No one can fix that for you. Get out of the relationship and rebuild your life the best you can. If you seek justice in family court, you will be dismayed. The outcome is usually as fair as both people involved.

 

In order to negotiate a settlement favorable for you, inform your lawyer of all relevant and pending issues, no matter how small the issues seem. A common example of this is the question of who will be permitted to claim certain tax exemptions once the divorce is finalized. You may see this as a small issue, but if it remains unresolved and problems erupt with tax returns it could be the source of great stress and strife later on. It’s better to deal with even the small issues, so that the agreement you negotiate is a total resolution of all the outstanding issues. If your lawyer thinks that an issue is too small to bother with, for example fighting over the stainless steel flatware, your lawyer will tell you.

 

If you are unable to settle your case after the court’s mandatory settlement conference, the Court will set a trial date.

 

Take this time to make sure you have done your research. See http://www.peace-talks.com/divorceinformation.php. Also be sure to visit the Peace Talks resource center at http://www.peace-talks.com/resources.php.

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

 

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What is Annulment?

Monday, May 4th, 2009

There are two types of annulments: religious and legal. A religious annulment is handled through your religious institution, and is usually unrelated to the legal process by which your marriage is dissolved. Therefore, it’s possible to be legally divorced, yet eligible for a religious annulment. Check with your religious institution about the requirements to have your marriage annulled.

 

Eligibility for a legal annulment is very rare. Each state has its own criteria. Being married only for a short period of time is usually not sufficient to qualify. If you think you qualify for an annulment, you will need to find out the exact circumstances under which your state permits this procedure. Examples of circumstances which may warrant an annulment:  you or your spouse were not legally divorced from a prior spouse (irrespective of whether you were aware of this problem) and you remarry; your spouse fraudulently induced you to marry promising children, and you find out that he or she is incapable of having children; or, you are married to a close blood relative. Simply finding out that your spouse is gay or a drug addict does not qualify for an annulment in most states. Thus, annulments are available only for specific, rare circumstances. For some basics about annulment law, see http://www.expertlaw.com/library/family_law/annulment.html.

 

If an annulment is granted, your marriage is considered legally to never have happened. It’s as if the court travels back in time and prevents the marriage from happening. Although the court may make orders concerning alimony, child support, and asset division similar to a regular divorce case, with an annulment you may represent yourself as “never married” because you haven’t been legally married. If annulment is not an option for you and you are headed toward divorce, feel free to visit our resource center at  http://www.peace-talks.com/divorceinformation.php.

 

Excerpted from Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Simon & Schuster/Fireside 2001). For more information: http://www.yourdivorceadvisor.com/.

 

For more information contact Peace Talks www.peace-talks.com 

(C) 2008  Peace Talks Mediation Services, Inc.

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