Posts Tagged ‘Creating Fair Settlements’

Personal Property in all Jurisdictions

Thursday, August 27th, 2009

The courts are reluctant to get involved in dividing up personal property, so if you and your spouse can do it yourselves, that is the best way to proceed. By the time you’ve argued in court about a two year old TV set and a sofa with a spot on it, you will have spent enough in lawyers’ fees to purchase both items new. Sit down with the list of your personal property and sort out the obvious items that one spouse or the other will want. The antique that came from your mother’s family home should go back to you, and his favorite recliner should go to him. Narrow your list to those items which are actually in dispute.

 

Once you have determined which items are in dispute, make a list of them. From here, there are several ways to proceed. One frequently used method  is to flip a coin, and the winner gets to pick the first item, the loser gets to pick the second item, the winner gets to pick the third item, and so forth.

 

Another possibility is to assign a dollar value to the property and have an “auction”. The spouse who wants certain pieces of property the most will be willing to pay the other spouse more for them than the spouse to whom the property is less important.

 

The Court will be reluctant to award one spouse money in exchange for giving the other spouse most of the personal property. Despite your sentimental attachment to your furniture and personal items, unless they are antiques, oriental rugs, or paintings by famous artists, most of your items have more value to you personally than they would to someone else. A judge will be unlikely to place values on the items, and award one spouse or the other the commensurate cash value for the items.

 

The message is to negotiate with your spouse for any personal property that you want, and don’t expect to be paid for what you give up. Take what you feel you deserve, but don’t expect any cash in lieu of property given up unless you both agree. For a good article on dividing property without a fight, see http://www.divorcehelp.com/rr/rr09.html.

 

If you cannot agree upon a fair way to divide up the items in dispute, at least you have narrowed the list, hopefully to a manageable length, for your lawyer to deal with in negotiations, or for the judge to divide at the time of the trial. For more tips on divvying up everything from family silver to DVDs, see  http://www.firstwivesworld.com/resources/resource-articles/divvying-everything-family-silver-dvds-during-divorce.

 

Emotions run high for certain possessions, and spouses sometimes use these hot buttons as an opportunity to retaliate against the other person. A good benchmark is “will this matter in 5 years?” If it will not matter, then be prepared to give it up now.

 

 

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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Yours Alone or Community Property

Tuesday, August 25th, 2009

If a business increased in value because the businessperson devoted time, skill, and expertise, then the business will be considered community property. Examples include an interior decorating business, software development, and other labor-intensive businesses.

Professional licenses are not subject to division, but can warrant alimony orders to even-out the earning power of the spouses.

 

To the extent that you intend to prove that an asset is your separate property, or that although an asset was purchased while you were married it was purchased with separate property, be prepared to present documentation which traces the source of the funds used to acquire the asset. If you have kept your property separate, you have a good chance of it remaining separate property for purposes of a community property state divorce. If you’ve intermingled separate property with community property, the court may find that you intended to give a gift of that separate property to your spouse, or that, at best, you’re entitled to reimbursement (without interest) for your separate property’s contribution to community property.

 

For instance, if you owned a rental property prior to your marriage and kept the rental income separate from any marital funds, in a bank account in your sole name, and used only the rental income to improve the rental property, then the rental income will be considered to have remained separate property, even though it accumulated during your marriage.

 

While the details of property division can become a bit confusing, keep sight of the initial premise: if it accumulated during your marriage, it’s probably community property. If you intend to claim otherwise, be prepared to prove it.

 

If property accumulated during your marriage, it’s probably community property and will be divided 50/50. If you intend to claim otherwise, be prepared to prove it. If you have questions, you may choose to meet with a divorce financial planner. See https://www.institutedfa.com/ReferralSearchPage.aspx. For resource on the financial aspects of divorce, see http://www.peace-talks.com/finformation.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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Distributing Property in an Equitable Division State

Tuesday, August 18th, 2009

If you had substantial property prior to your marriage, or you inherited substantial property during the marriage, you may be able to preserve this property as your own, separate property even in an equitable jurisdiction state. Be prepared to prove ownership and how you acquired the property, and be sure to give this information to your attorney early in your case.

 

The following is a checklist of facts and factors for distributing property in an equitable division state:

 

  1. age
  2. health
  3. education
  4. ability to earn income in the future
  5. ability to accumulate assets in the future
  6. special needs of children
  7. parenting needs of children
  8. contribution to assets
  9. separate property
  10. inheritances, gifts, and family loans
  11. appreciation of joint and sole assets over time
  12. liquidity of funds
  13. tax ramifications
  14. pre-marital contributions
  15. non-monetary contributions

 

The better prepared you are, the more likely you are to feel that your settlement is fair. For a list off good books on the divorce process, see http://www.peace-talks.com/books.php. Also, be sure to see 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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Other Factors Influencing Property Division

Wednesday, August 12th, 2009

Other factors that can influence property division are how long you have been married, how old each of you are, what your health is like, what your educational backgrounds are, your prospects for future income, whether or not the judge thinks that the spouse ordered to pay child support and spousal maintenance will actually pay the orders, and a variety of other factors. Inheritances and money that each spouse contributed to the marriage are often important as well. Be sure to bring these matters up with your lawyer and discuss what they mean in your particular case, given your state’s laws. While each case is decided individually by the court, your lawyer can give you an idea of how judges in your state would consider each factor, and how that would translate into property distribution in your case.

 

Courts recognize non-monetary contributions to families just as they do monetary contributions. Housewives, stay-at-home moms, stay-at-home dads, and spouses who contributed to the family in non-monetary ways are recognized along with spouses who contributed to the home with salary, inheritance, or savings.

 

Don’t expect the court to do a dollar-for-dollar accounting of all money earned and spent by each spouse.

 

Most courts will assume that while you and your spouse were married, you made certain decisions together in the best interests of your family as a whole. The Court will not second guess those decisions by punishing one spouse for not working, or for not earning as much, unless those are material issues in your case. For example, if the reason your spouse didn’t work is because he or she had a drug problem, the Court will likely consider that unfavorably toward your spouse in the property settlement. If your spouse didn’t work because he or she stayed home with the children while you advanced your career, the Court will view that spouse as an equal contributor to your family assets, even though his or her contribution was not monetary. It is not the Court’s purpose to unravel every financial transaction during your entire marriage to decide who contributed exactly how much money, who purchased which item of furniture, and who worked the most hours, thereby creating a disparity in earnings. It may be helpful for you to work with a divorce financial planner. To find one near you, see https://www.institutedfa.com/ReferralSearchPage.aspx. See the financial section on the Peace Talks website at http://www.peace-talks.com/finformation.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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Property: Equitable Division of States

Monday, August 10th, 2009

Forty-one of the fifty states are Equitable Division states (i.e., every state except Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin). That means that the court has the ability to order that any property belonging to either you or your spouse may be subject to division by the court. The division is based on what the court determines to be fair, hence the name “equitable division.” All  property acquired during the marriage is subject to division, as well as property which was acquired prior to the marriage by either of you individually, gifts from one family, inheritances, personal injury lawsuit settlements, bonuses, pensions, stock options and other assets which you have value to you.

 

Typically, most courts will focus on dividing the assets which accumulated during the marriage rather than those which accumulated prior to it. Pre-marital assets may be subject to division, however, depending upon the individual circumstances of your case.

 

For example, if you and your spouse have $150,000 in assets which accumulated during the marriage, both of you are in good health and have decent jobs, and your children are healthy and don’t require any special care, then the court will focus first on dividing those assets. Assets which each of you accumulated prior to the marriage will be considered, but if dividing the marital assets will provide each of you with a reasonable settlement, then several thousand dollars of pre-marital savings or property is probably “safe” from the court’s orders.

 

If, on the other hand, one of you has $100,000 in premarital savings, and together the two of you accumulated no assets, but $20,000 in credit card debt, it is likely that a court will order a portion of that $100,000 to go to the other spouse, and to pay the credit card debts. For information about finances and divorce, see http://www.peace-talks.com/finformation.php. You may also find it helpful to work with a divorce financial analyst, see https://www.institutedfa.com/ReferralSearchPage.aspx.

  

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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Forks in the Road: Settlement or Conflict?

Tuesday, June 30th, 2009

Once the decision to divorce is made, you reach a fork in the road, where you need to make a series of choices about how you will proceed with your divorce. At each fork in the road, you choose your path: settlement or conflict. You can maintain a generous outlook toward your spouse, which fosters settlement, or you can respond to your more negative emotions, which fosters more conflict. In choosing conflict, you soon find yourself further down the road toward adversarial divorce than you intended. Once several choices have been made that foster conflict over settlement, it becomes increasingly difficult to extract yourself.

 

Choices that exacerbate conflict include: acting with distrust and dishonesty, being aggressive or stubborn when reasonable compromises are available, or making the process difficult in order to satisfy your anger, desire for punishment of your spouse, or your fears. When each conflict is held onto with tenacity, feelings of affection from the marriage are eroded and are replaced by resentment that smolders into fury. These feelings often stem from grief that goes unacknowledged, your own or your spouse’s. When grief is not worked through, it becomes a cantankerous emotional tumor, spreading its way through your heart and central nervous system. It hardens into bitterness. For a good article on compromise in divorce, see http://ezinearticles.com/?Divorce—Finding-Compromise&id=516461.

 

Divorce is rarely easy, and bitter feelings make it more arduous. Although few couples actually go to trial, many go a long way towards trial before finally settling. These cases are characterized by added length and cost to the divorce process.

 

If your priorities are clear, you are willing to compromise on most sticking points, you hired an attorney who is interested in settlement, and you are not hindered by emotional issues carried over from the marriage or the hurt of facing divorce, then you have an excellent chance of settling your disputes with minimum chaos to you and your family. Of course, you can not effect success alone. Both partners have to participate. Some great information on conflict and compromise is provided at http://www.divorceinfo.com/conflict.htm.

 

Many spouses feel that they are the ones doing the compromising to achieve resolution, while their spouse is blocking it. Yet their spouse tells the same story, only he/she is the one doing all the work! When perceptions are so disparate, neither person can be acting in the “perfect” way they believe. If your conflict is increasing rather than decreasing, take a hard look at what you might do differently. Most important, try understanding what’s happening inside of you that is contributing to communication breakdowns. Assess whether you are acting out your feelings instead of experiencing and managing them.

 

 

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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Personal Assessment: Are you Prepared for Divorce?

Thursday, June 25th, 2009

As you prepare to make your final decisions about whether and how to divorce, it is helpful to check in with yourself throughout the way and assess where you are. Consider the following.

 

  1. Have I considered all of my legal options?  Am I sure I understand the pros and cons of each?  If I take time now to learn about different ways to proceed, I am more likely to make a choice which accomplishes my goals both in the short run, and in the long run.
  2. Have I accurately assessed my personal circumstances, my willingness to learn about the legal process and my emotional needs so that I can decide whether I need the help of a lawyer during my divorce?  Have I been honest with myself about my own capability in handling this legal matter, especially since it is such an emotionally charged process?  If I am confident that I have enough knowledge about the process to proceed, I can trust myself to ask for help when I need it.
  3. Have I considered the different ways to approach this divorce?  Am I confident of my ability to keep focused on my goals: a fair settlement, a sensible parenting arrangement, practical financial support orders, even when I am tempted to seek revenge?  If I am able to see all of the options without losing sight of what’s best for my future, then I am more likely to be happy with the end result.
  4. Have I determined my goals in choosing professionals to help me with this divorce?  If I understand my goals, I will be better able to pick the most appropriate people to help me accomplish them.
  5. Have I recognized that our old style of communicating is not working?  Have I found ways to begin to communicate differently?  If I am able to communicate with my ex-spouse, it will be easier for us to resolve our differences without unnecessary expense, delay, and stress. If we can communicate, it will be easier for us to focus on our children’s needs rather than our own, even when we disagree.

 

 

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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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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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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