Three Divorce Trends In The Post-2008 World

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.

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Divorce and the Mortgage

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

 

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

Is divorce mediation cheaper than divorce litigation?  There is research and other commentary  that suggests that mediation is cheaper, but the common consumer should be aware of the fine print.

Fine Print One:  Mediation doesn’t guarantee an agreement.  You could pay for mediation and, if no agreement is reached, still have to move forward with litigation.

Fine Print Two:  Mediation works when both parties in divorce are reasonable.  If one or both spouses cannot control their emotions, making the business-decisions of divorce and the self-less decisions of parenthood may simply be impossible.

Fine Print Three:  Mediators will not serve as your attorney.   If you have a legal question, you should ask an attorney and not the mediator.  Many individuals are unaware that you can use an attorney for counseling (short sessions for specific legal information and advice), litigation (to represent you in all aspects of litigation), and for finite projects (to draft a parenting plan, file the uncontested divorce paperwork, represent you at the mediation only, write a will, etc.).  If you arrive at mediation without knowing the legal landscape, you will have arrived unprepared.   If you are trying to undercut or minimize legal fees, then use a lawyer wisely and then you may be able to use mediation wisely, too.

 

 

 

E-Discovery Disputes in Employment Matters

KPMG has been ordered to preserve the hard-drives of many perhaps “similarly situated” auditors, not just the hard-drives of the two auditors suing them, in an underpayment of wages case in New York.   It may be time to either mediate the e-discovery matter (see list of qualified E-Neutrals) in this two-party case that apparently has class-action exposure!

When Should You File Bankruptcy, Before or After a Divorce?

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

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.

 

Helping an Employee Through Divorce

Helping an Employee Through Divorce

Retaliation: Employers Beware!

Many workplace laws have specific provisions that prohibit employers from retaliated against an employee for raising concerns about certain subjects:  perceptions of discrimination, harassment, workplace safety issues, and more.  

What many individuals do not readily understand is that even if an employee’s complaint or concern raised ends up being “nothing,” the employer (or the supervisor) is generally prohibited from taking action against that individual for making the “mistaken” complaint if it was a concern that is legally protected.  

A recent article speaks to these retaliation claims, their increasing prevalence, and what some smart practices (such as supervisor training) are for the workplace to prevent retaliation issues from arising.