Wednesday, May 25, 2016
Judge OKs malpractice suit over law firm's successful fight to uphold client's postnuptial agreement
Malpractice Suit on Firms Negotiated Post-nuptial Agreement Gains Traction
From the ABA Journal:
A New York trial court has OK’d a malpractice suit against Phillips Nizer, over the law firm’s handling of a divorce case that generated $1.4 million in legal fees for work done by 23 attorneys and 16 other professionals.
At issue is a 2000 postnuptial agreement that the firm helped negotiate and draft for client Elizabeth Berardi. It granted her a 49 percent interest in companies controlled by her husband, who operates bus companies. However, the pact did not specify whether she could liquidate her interest and, if so, how she could do so, reports the New York Law Journal (sub. req.).
A divorce ensued within five years, and Berardi again retained Phillips Nizer. Her husband, Eugene Berardi, challenged the postnup and she fought against its invalidation, winning the legal battle. However, unbeknownst to her, agreements made before 2000 with former shareholders and business partners in her husband’s companies limited the liquidity of her own interest, Elizabeth Berardi alleges in her complaint against the firm.
Read more here.
Monday, May 23, 2016
"No Fault," what?
From HuffPost Divorce:
In 1970, the State of California originated the concept of “no-fault” divorce. The rationale behind the law was that there was no point in forcing people to stay in a marriage when they were not happy in it, and that requiring someone to prove legal grounds to dissolve the marriage was not serving any useful purpose. Historically, in order to obtain a divorce one had to prove the existence of legal grounds such as adultery. This often required additional expenses on behalf of the aggrieved party, only serving to make the divorce process more expensive and cumbersome than it already was. In the years leading up to the enactment of “no-fault” divorce, courts often granted divorces on bases that were easier to prove, the most common being “mental cruelty.” In that situation, one spouse would testify that he or she was being subjected to mental stress as a result of the actions of the other spouse. Given that, and given that people simply did not want to be married, there seemed little reason to force them to stay in marriages when grounds could not be established. Over time, the “no-fault” movement expanded to other states, although interestingly it only reached the typically progressive state of New York in 2010.
Read more here.
Sunday, May 1, 2016
If you’ve gone through it, you don’t need me to tell you how financially devastating divorce can be. Many people lose half (or more) of everything they’ve saved over their lives. This includes their home, retirement, business and investments. If that isn’t bad enough, divorced people often see their income wither while their expenses explode. No doubt about it, divorce is bad news financially.
Having said that, all is not lost. In fact, there are plenty of things you can do to improve your situation significantly. Specifically, if you’ve gone through divorce recently, here are eight things you can do now to help yourself get back on track as quickly as possible.
1. Do Not Panic Or Waste Energy
This is much easier said than done I realize, but you need every ounce of energy you can muster to rebuild your financial life. Don’t waste time worrying – it won’t help. Also, please know that you are not powerless. There are plenty of steps you can take that will help turn things around quickly (which I’ll share in a minute). Don’t worry. You have many choices, and as bad as it may seem, you probably aren’t going to be out in the street. Don’t waste energy worrying because it serves no purpose and saps you of the energy you need to get things back on track. (A divorce survival guide may be helpful too.)
2. Inventory Your Financial Life
You may or may not understand how finances and investments work right now, but that doesn’t matter. In time, you will improve your knowledge.
At this moment, it’s time to account for where you are and that means putting together an inventory of your financial life; income, expenses, assets and liabilities. I suggest you create a little spreadsheet or loose leaf binder. Make a separate sheet for income, another for expenses, another for assets and the last sheet for liabilities.
On each sheet, make a line item entry with the type of account, amount, who owns the account, what the rate is and the contact information at each institution.
It’s astonishing how empowering it is just to have one place to go to in order to get an overview of your finances. Knowledge is power, friend — take advantage of it.
Read more here.
Thursday, April 14, 2016
In a major document released Friday, Pope Francis addressed divisive elements of Catholic doctrine — including how to treat couples who remarry after a divorce that wasn't annulled by the church, and the church's stance on contraception.
Without issuing any new top-down doctrine, Francis said that priests should focus on providing pastoral care for Catholic couples, rather than sitting in judgment of them, and that individual conscience should be emphasized, rather than dogmatic rules.
The document — a post-synodal apostolic exhortation called "Amoris Laetitia," or "The Joy of Love" — is more than 250 pages long.
In it, the pope emphasizes that life is more complicated than religious law. In the opening pages, he invokes the values of "generosity, commitment, fidelity and patience," but also says he wishes to "encourage everyone to be a sign of mercy and closeness wherever family life remains imperfect or lacks peace and joy."
He explains that in Amoris Laetitia, in addition to considering scripture, he will "examine the actual situation of families, in order to keep firmly grounded in reality." And he notes that Jesus set forth a demanding ideal for his followers — but "never failed to show compassion and closeness to the frailty of individuals."
Joshua McElwee of the National Catholic Reporter told NPR's Morning Edition that the exhortation has a very different tone than previous church pronouncements on these subjects.
Read more here.
Wednesday, April 13, 2016
From BBC News:
India is perhaps the only country in the world where a Muslim man can divorce his wife in a matter of minutes by just uttering the word talaq (divorce) three times. But this controversial practice of "triple talaq" is now facing a stiff challenge - the Supreme Court is considering whether to declare it unconstitutional, writes the BBC's Geeta Pandey in Delhi.
Shayara Bano's world came crashing down in October.
The 35-year-old mother of two was visiting her parents' home in the northern state of Uttarakhand for medical treatment when she received her talaqnama - a letter from her husband telling her that he was divorcing her.
Her attempts to reach her husband of 15 years, who lives in the city of Allahabad, have been unsuccessful.
"He's switched off his phone, I have no way of getting in touch with him," she told the BBC over phone from her home in the northern state of Uttarakhand. "I'm worried sick about my children, their lives are getting ruined."
In February, a frustrated Shayara Bano filed a petition in the Supreme Court, demanding a total ban on triple talaq which, she says, allows Muslim men to treat their wives like "chattel".
Muslims are India's largest minority community with a population of 155 million and their marriages and divorces are governed by the Muslim personal law, ostensibly based on the sharia.
Even though it has been practised for decades now, the unilateral instant triple talaq is clearly an aberration - it finds no mention in sharia or the Koran.
Islamic scholars say the Koran clearly spells out how to issue a divorce - it has to be spread over three months which allows a couple time for reflection and reconciliation.
Read more here.
Thursday, April 7, 2016
From The Wall Street Journal:
India’s Supreme Court is considering petitions that challenge Muslim laws governing marriage on the grounds that they discriminate against women, a charged issue that risks angering the country’s orthodox Muslims.
A panel headed by the chief justice that is hearing the petitions directed the government this week to release an official 2015 report that looks at the impact of some of India’s religion-specific laws on women’s rights and recommends legal reform.
Among the petitioners calling for change is Shayara Bano, a Muslim woman whose husband, after 13 years of marriage, divorced her by triple talaq, a practice that allows Muslim men in India to leave their wives unilaterally and often instantaneously by saying “talaq,” meaning divorce, three times. Other similar petitions were put together by the court and are being heard at the same time.The next hearing in the case is expected in May.
The Indian constitution protects gender equality, but on issues of marriage, divorce and inheritance, different religious communities are governed by their own so-called personal laws. Whether a person is subject to those laws is usually determined by their religion at birth.
Muslim clerics and scholars have rebuffed demands for unifying personal laws into a common civil code for all Indian citizens—advocated by Prime Minister Narendra Modi’s Bharatiya Janata Party—rejecting what they call attempts to interfere with their religious practices in Hindu-majority India. There are more than 170 million Muslims in the country out of a 1.2 billion population.
Muslim women’s rights groups argue that the practice of triple talaq misinterprets the Quran and is protected by orthodox Muslim men to perpetuate patriarchy. In her petition, Ms. Bano asks the court to declare it illegal as it “practically treats women like chattel,” infringes their “basic right to live with dignity” and violates their fundamental rights to equality and life guaranteed under the constitution.
Read more here.
Tuesday, March 22, 2016
From NBC News:
Americans are more accepting of gay relationships and couples living together before marriage — but they've grown less comfortable with divorce, a new survey shows.
The government periodically asks thousands of teens and younger adults what they think about changes in U.S. family relationships. The results released Thursday by the National Center for Health Statistics indicate a shift over a decade on a range of topics. But most surprising was what they said about divorce.
Asked if divorce is the best solution when a marriage is on the rocks, 38 percent of women agreed, down from 47 percent a decade earlier. For men, it was 39 percent, down from 44 percent.
Divorce in the U.S. has become more common through the generations, and there's an assumption that acceptance would be holding steady or perhaps increasing, some experts said.
There could be several explanations for the decline, said Wendy Manning, a family and marriage researcher at Bowling Green State University in Ohio.
Marriage rates are down and people are older when they first get married. So those who do marry are more likely to be in it to win it, she said.
"Marriage is becoming so selective that maybe people think if you achieve this status, you don't want to end it," said Manning.
Read more here.
Monday, March 14, 2016
Since mobile apps have revolutionized the dating game, it's no surprise that apps to help you split up would follow.
It's never been easier to call it quits thanks to a slew of simple online offerings that can be accessed from any mobile phone aiming to help couples navigate the divorce process and avoid hefty legal fees along the way.
One start-up, Wevorce, offers a step-by-step "DIY" guide withmediators accessible by videoconferencing starting at $749. Through Separate.us, users can complete, file and serve divorce papers entirely online. That service costs somewhere between $1,000 and $3,000, the company estimated.
Avvo, an established online legal marketplace, also recently launched a complete, uncontested divorce package, which includes a 30-minute phone call, for $995. And other online sites advertise uncontested divorces for even less.
"For better or for worse, technology has made it easier for people to split," said Avvo's general counsel and consumer advocate, Josh King.
Avvo helps users connect with a local lawyer of the customer's choice to complete the paperwork for the dissolution of a marriage. If more help is needed, the lawyer can provide additional counsel for an extra fee. But these packages are not for everyone, King said.
"The critical thing is that you don't have a lot of disagreements or complicated externalities," King said. "These products are designed to cover a wide range of people that have a fairly routine legal problem."
And as these tools that aim to achieve a more efficient — and affordable — divorce gain steam, experts warn that divorces are rarely that simple.
"If they have no assets and no children, you can do one of those divorces, no harm, no foul," said John Slowiaczek, president-elect of the American Academy of Matrimonial Lawyers. But far more often, couples have other issues including alimony, child support, retirement accounts, real estate, student loans, investments, taxes, credit cards and so on, he said.
Read more here.
Friday, March 4, 2016
No one plans to get divorced. But it does happen… and when it does, the understandable emotional upheaval can make it hard to focus on dealing with practical matters.
And that’s too bad, because when your marriage ends you should immediately take steps to ensure your interests are protected — and your estate plan reflects your new marital status.
What should you change? In two words, almost everything.
Once your divorce is final – meaning the divorce decree has been approved and a judgment rendered – as a start you should review and revise, if necessary, the following legal and estate planning documents:
- Powers of Attorney (property, healthcare, HIPAA, etc)
- Will (if you have one)
- Life insurance policies
- Retirement accounts
What happens if you don’t make changes to the above?
As one example, say your ex-spouse remains the beneficiary of your life insurance policy and you pass away. In that case the proceeds will go to your ex-spouse instead of, say, to your children. That may be what you intend – but then again, it probably is not.
Read more here.
Tuesday, February 23, 2016
From Times of India:
A single letter can constitute an act of cruelty, the Delhi high court has said, granting divorce to a man living separately from his estranged wife for the past 28 years. The missive in question: a declaration by his angry wife in 1990 when he was stationed abroad that she wanted to divorce him and that she had found an old friend who wanted to marry her and accept her with their young daughter.
It was only in 1995, when the case came up in trial court, that she admitted the letter didn't contain a grain of truth and was only meant to jolt the husband out of his complacency. But Justice Najmi Waziri of the high court pointed out the mental agony caused to the husband due to "this sole act of cruelty that continued for a period of 4-5 years".
Upholding the decision of the trial court to dissolve the marriage on ground of cruelty, Justice Waziri noted, "For a husband living away from his wife since 1987, to have received a letter from her intimating him about her unequivocal decision to dissolve the marriage and marry another man would have been a pain as grievous as any to endure. Such an element of rejection, coupled with brunt of emotional infidelity by the wife, can break the spirit of the husband to continue marital ties."
Challenging the decision in high court, the wife argued that the letter was a "one-off, stray incident and could not be a ground for divorce". She said it was an act of despair, the letter was written in sheer frustration since she had been waiting for many years to live with her husband again, abroad or back home.
Read more here.
Sunday, February 21, 2016
From The Clarion-Ledger:
Domestic violence would become grounds for divorce under a bill passed out of the Senate Judiciary A Committee on Tuesday.
"One incident of domestic violence is enough," said state Sen. Sally Doty, R-Brookhaven, author of Senate Bill 2418.
Doty said she had conversations with the Mississippi Coalition Against Domestic Violence and others about the bill.
Mississippi has 12 grounds for granting a divorce. Under Senate Bill 2418, one or more instances of domestic violence would be the 13th, if established by clear and convincing evidence.
Freshman Sen. Chad McMahan. R-Tupelo, argued for adding documented domestic violence to the language in the bill.
"Are you saying it should be some documented report of domestic violence?" Senate Judiciary A Chairman Sean Tindell, R-Gulfport, asked McMahan.
McMahan said he believes domestic violence should be proven and not based solely on a person claiming it without proof.
Doty said the bill states domestic violence has to be established by clear and convincing evidence, which sets a higher standard than a person merely claiming it.
Read more here.
Saturday, February 20, 2016
From Business Insider:
Ever been in the middle of a heated argument when suddenly the other person pulls out their phone and starts texting? If the answer is yes, and if you find it happening constantly, we hope that person isn't your significant other.
This behavior, known as stonewalling, is one of four reactions that John Gottman, a psychologist at the University of Washington and the founder of the Gottman Institute, has identified as a telltale sign that all is not well with a married couple.
In fact, when Gottman and University of California-Berkeley psychologist Robert Levenson lumped stonewalling together with three other behaviors — contempt, criticism, and defensiveness — and measured how often they occurred within the span of a 15-minute conversation, they found they could predict which marriages would end in divorce with striking precision.
When the psychologists added questions about things like relationship satisfaction and how many times the research subjects had thoughts about separating to the mix, they could predict which marriages would end in divorce 93% of the time.
The figure, which comes from a 14-year study of 79 couples living across the US Midwest (21 of whom divorced during the study period), was so striking it spurned the researchers to label the four behaviors "the four horsemen of the apocalypse."
While that initial study, published in 2002, was small and focused on a specific population, a decade of research into marriage and divorce has lent further support to the idea that divorce is associated with specific negative behaviors.
Read more here.
Friday, February 19, 2016
From New York Daily News:
As the yule log’s embers died and resolutions for a new year — and a new you — abounded at the start of January, family attorneys everywhere, including myself, prepared for the influx of official separations and divorce filings.
In the divorce law community, we generally adhere to three truths. Engagement season is November to February. And divorce, sadly, has two high seasons — January and March.
For January’s bump, the let-down of failed holiday happiness, mixed with hurt and angry partners, often leads to a trip to the divorce lawyer to discuss their options.
My office is usually filled with spouses who truly thought that if they could just make it past the holidays and New Year, they could heal their marriage.
However, the holidays usually end up being the last straw before the matrimonial bliss takes a tumble.
In addition to failed expectations, financial and family pressures soar in November and December.
According to a 2012 study published in The Family Relations Journal, “Examining the Relationship Between Financial Issues and Divorce,” researchers Jeffrey Dew, Sonya Britt and Sandra Huston found that most couples argue about their children, money, in-laws and quality time — or a lack thereof — with financial arguments being the most likely predicter of divorce.
Read more here.
Thursday, February 18, 2016
From Chicago Tribune:
Dickler, the presiding judge of the domestic relations division in Cook County Circuit Court, has overseen thousands of divorces, from the seemingly ordinary to the obviously extraordinary. You may have heard her name during the highly publicized divorce of Chicago billionaire Ken Griffin from his wife, Anne Dias Griffin.
In her quarter century of handling divorces, Dickler has witnessed how the finances may differ from case to case, but the other hard parts — the sadness, the loneliness, the bitterness, the fight over children — are the same regardless of address or social class.
But awhile back, Dickler recognized that there was a class of people for whom divorce — and the related issues of how to deal with property and children — came with unique difficulties.
Those people are known in the legal system as "the incarcerated."
The incarcerated tend to be poor, people for whom "property" may mean little more than a few clothes and papers. In Illinois, the prisons where the incarcerated live tend to be in remote places far not only from their homes and their children, but from domestic relations court; the logistical impediments to getting a divorce have made getting one almost impossible.
Read more here.
Saturday, February 6, 2016
From Wall Street Journal:
When entrepreneurial couples get divorced, there’s often at least one child that gets torn apart: the business they raised together.
Spouses who spent years building a company suddenly find themselves having to divide it up, and the negotiations can get nasty. One spouse may demand a bigger share of the company to soothe bad feelings from the divorce. Another may get defensive about the business’s finances and refuse to divulge details. And old resentments about how the business has been managed can bubble to the surface, making things even uglier.
Both spouses can be left emotionally drained, and the business can end up neglected—or dissolved entirely.
“The worst-case scenario is that you have to liquidate the business and split the proceeds,” says Catherine Stanton, an attorney and divorce mediator in Denver. “When we’re going through a divorce, we’re not always our best selves. If you’ve got a bad relationship with your spouse, they might not feel compelled to find another solution, and may go for the nuclear option.”
It doesn’t have to be this way.
Of course, it’s impossible to take bad feelings entirely out of the picture. But there are strategies spouses can use to ensure their business has a fighting chance to survive a split, as well as minimize their own emotional turmoil. In some cases, these methods can even help spouses run the business together—and thrive—after the divorce.
Read more here.
Friday, February 5, 2016
From Fox Business:
A Qualified Domestic Relations Order (QDRO) is an order that needs to be included in a divorce settlement agreement to provide former spouses their share of Erisa-qualified retirement assets. In order to receive your fair share of assets saved during the years you were married, a QDRO will ensure your rights under these retirement plans are fully protected. QDROs should be prepared by a qualified family lawyer who understands the tax implications and other consequences of dividing the full range of retirement assets.
Connie Buffington, a family lawyer with the Atlanta office of Boyd Collar Nolen & Tuggle, offered the following tips to FOXBusiness.com on what divorced retirees need to know regarding their rights involving their ex-spouse’s employee benefit or pension plans.
There are three common mistakes when dividing qualified retirement assets (e.g. 401(k) plans) and non-qualified retirement assets (e.g. IRAs) during a divorce: not considering potential tax consequences and liabilities; not defining the method by which a traditional pension plan is to be divided; and not accounting for the treatment of investment gains or losses in the context of the division.
QDROs are required to divide assets held in ERISA-qualified plans in connection with divorce. They can also be used to facilitate alimony and child support payments. They’re not required to divide IRAs or non-qualified plans, such as deferred compensation plans, supplemental pension plans, long-term incentive plans or stock ownership plans.
Read more here.
Thursday, February 4, 2016
From Daily North Shore:
We’ve heard a thousand times that patience is a virtue, and the Bible tells me that Love is patient. The Fins wrote that “God did not create hurry;” the French, “Patience is bitter but its fruit is sweet.” And the Italians gave us, “The salt of patience seasons everything.”
Local attorney Jennifer Cunningham Beeler says patience is the most important thing a divorcing couple can bring to the courthouse these days. Illinois divorce laws changed significantly Jan. 1, adding a new layer of stress to that most stressful negotiation.
“It’s the first big change in the laws since 1973,” Beeler told me. “Attorneys and judges are having to relearn things we have long been comfortable practicing. But the 2016 laws recognize that old old-fashioned view of family is changing, and now we have two moms and two dads and step-siblings and others.”
Beeler knows of which she speaks. Beyond her litigation experience in Lake and Cook counties, she earned a certificate from DePaul University’s Center for Dispute Resolution in family and divorce mediation, is a court-approved financial mediator in Cook County, and is a financial and custodial mediator in Lake County. She also serves as a child representative and guardianad litem for custodial cases.
As she explained how the law has changed, I consider how family life, too, has changed since 1973. The Illinois Department of Public Health reported a marriage rate of 10.7 per 1,000 residents in 1973, and a divorce and annulment rate of 4. That year, Illinois posted 44,671 divorces and 481 annulments. Mobile phones weren’t commonly available to ease communication among family members, and microwave ovens were too expensive to expedite dinner for most households. Adults held traditional jobs with traditional hours, not voicemail and email and Skype to extend the work day far past 5 p.m.
In 2011, the number of marriages exceeded 73,000 and the divorces exceeded 33,000. Still, the rates in each category were lessened by half. But these figures barely hint at how families have changed in those 38 years. It’s exciting to hear that the law is catching up.
And so Beeler explained: gone with these most recent changes in the local divorce laws is the notion of sole and joint custody, in favor of an “allocation of parental responsibilities”. And the concept of visitation is now considered an “allocation of parenting time”.
Read more here.
Thursday, January 28, 2016
Divorces are skyrocketing for people in their 50s and 60s. Between 1990 and 2012, the number of divorces among people 55 to 64 more than doubled and tripled for those 65 and older, according to a study by Susan Brown, I-Fen Lin and Krista Payne of Bowling Green State University.
On top of the personal pain, divorcing spouses often face extraordinary financial pain.
As the Bowling Green researchers’ report, Marital Biography, Social Security and Poverty, noted: “Those who divorce earlier in adulthood have more time to recoup the financial losses divorce usually entails. In contrast, those who divorce later have fewer years of working life remaining and may not be able to fully recover economically from a gray divorce.”
Said Christine van Cauwenberghe, assistant vice president of tax and estate planning with the Investors Group financial advisory firm in Winnipeg, Manitoba: “Going through a divorce can be difficult at any age, but older couples face unique challenges in retirement planning as a result of later-in-life separations.”
Van Cauwenberghe added that because divorce is an emotional process, it “can cloud your ability to make sound financial decisions that will ultimately affect your future.”
That’s why, if you’re divorcing in your 50s or 60s, it’s crucial to reassess your financial plan to ensure that it reflects your new direction in life.
Although the freedom divorce offers may be refreshing, the danger in becoming single at a later age is being one step closer to retirement without a partner and potentially with half the income.
Read more here.
Sunday, January 10, 2016
From Belleville News-Democrat:
After the holidays, divorce lawyers tend to get really busy. This coming year is going to be even busier.
The Illinois General Assembly passed the first revision of the “Dissolution of Marriage Act” in decades that changes how divorces are handled by the courts. The new law goes into effect Friday.
“It’s not perfect, but we were told perfection is the enemy of good,” said Edwardsville lawyer Jennifer Shaw, who helped revamp Illinois’ divorce law.
The changes will affect everyone filing for divorce in Illinois after Jan. 1. In 2015, more than 1,000 divorces were filed in St. Clair County and 1,200 in Madison County.
Some of the changes cover new terminology that reflects recent changes in society, such as gay marriage. Husband and wife are now referred to as the more gender-neutral “spouses.” Child custody is now referred to as “allocation of parenting time and responsibility.”
“It takes the sting out of the word ‘custody,’” Shaw said. “The judge will still make the decision on the amount of time the child spends with either parent by what’s in the child’s best interest.”
It also makes the process less confrontational.
Saturday, January 2, 2016
From NBC News:
Should those irreconcilable differences suddenly become reconcilable, don't go looking to get un-divorced in New Hampshire.
The state's Supreme Court this month upheld a lower court ruling refusing to vacate a New Castle couple's 2014 divorce after 24 years of marriage.
Terrie Harmon and her ex-husband, Thomas McCarron, argued on appeal that their divorce decree was erroneous because they mended fences and are a couple once more. But the justices, in a unanimous ruling issued Dec. 2, said the law specifically allows them to grant divorces — not undo them.
Courts in some states — including Illinois, Nebraska, Mississippi, Arkansas, Maryland and Kentucky — will vacate divorces within a certain time frame or under certain circumstances, at the parties' request. Others — including New York and South Dakota — maintain they, like New Hampshire, have no statutory authority to undo a divorce.
Attorney Joshua Gordon, appointed to defend the lower court's ruling, said allowing the couple's divorce to be undone could jeopardize the finality of all divorces.
"Divorce is a uniquely fraught area of litigation," Gordon argued. "For divorced couples, it is often important to have the solace of knowing that their former spouse is indeed former."
Read more here.