NY Judge Refuses to Order Support for Jilted Girlfriend

A New York judge has refused to order an advertising executive to make support payments to his former girlfriend, notwithstanding the exec’s promsies to support her, and his promises that if the couple ever broke up he would treat their separation as if they had been married. The former girlfriend had asked the court to impose a trust in her favor over certain of the defendant’s assets as a means of enforcing his promise – unfulfilled – to support her after the couple split up. In dismissing the claim for a constructive tryst, the court noted that the plaintiff had failed to establish 3 of the 4 legal requirements for the imposition of a constructive trust and that, in any event, longstanding New York policy recognizes that unmarried couples do not have the same property and financial rights that married couples do when a relationship ends. Which all goes to show that, yes, marriage does still matter, and that in some cases promises are worth the paper they are written on. An interesting question, which I will write more on when I am further into my research, is whether the court would have enforced the equivalent of a pre-marital agreement if the cad exec had put his promises in writing. Any New York folk have any insight into what NY law is on that question?

Some Practical Advice About Money

There are two reasons family law will always be a busy area of practice.  The reasons are that there are two subjects we do not teach in school: conflict resolution and money management.  If people could manage their money or the conflict in their lives, the divorce business would be in for a major downturn.

Practical financial advice is hard to come by.  And we say this with some authority because we have been looking for professionals who understand household finance.  Yes, there are thousands of publications out there that will tell you how to ladder certificates of deposit or dollar cost average your way into index funds.  But, how much you spend on a car or an apartment often determines whether you have any money to invest at all.

Ironically, we found some sensible and practical advice in the September, 2009 issue of Glamour Magazine. No kidding.  Wedged in between Jessica Simpson’s views on men and three flat belly secrets we found an article by Sophia Banay supported by a woman named Galia Gichon who founded something called “Down to Earth Finance.”  The magazine is worth buying for all of the advice but the segment we particularly liked was the part discussing how to budget a $50,000 income.  Gichon breaks down expenses into four categories. She takes the budget and converts to monthly income of about $4150.  She appears to allow for income taxes although that number is not discussed.  But her breakdown is divided between:

Fixed expenses that don’t change monthly                         $1665 a month

Discretionary living expenses                                             $830-970 a month

Retirement savings                                                            $417 a month minimum

General Savings                                                                 $140-280 a month

Gichon comments that fixed expenses including rent, utilities and car payments should not consume more than 60% of your net income (gross income less income taxes).  She suggests that rent or mortgage payments should not exceed half of the fixed expense budget, although this can be a tough assignment in many urban parts of this country. But if that is where life takes you, the answer may be that you don’t drive the same car or limit your discretionary expenses.

Obviously, it is also possible to forego general savings, especially in a world where you are already saving for retirement.  The article suggests that discretionary expenses be limited to 30% of net pay.  This is where the weak tend to falter at the altar of clothing stores, restaurants and Starbucks.  Another contributor to the article, Maria Bartiromo of Closing Bell on CNBC sagely offers that you allow yourself a day before making any major discretionary purchase.  Time afford perspective and you may actually discover that television is almost as enjoyable on the 30 inch flat screen even though the 42 inch beckons.

The article also addresses the subject of debt.  In the past the standard advice is that you need to save three to six months income to cover you for the “rainy day” of illness or unemployment.  Today, consumer credit may fill in the gap, but we are finding that many people are already using their cards to fund expenses they can’t afford long before the rain day ever comes.  These are folks who simply cannot survive if a crisis emerges because they are already deep in high rate debt.

The goal is to budget but before you can intelligently budget you must first be thoroughly familiar with what you bring home and what you currently spend.  It is not a pretty task but people who want to have money when they stop working had better address the question sooner rather than later no matter what their marital status.

Source for post: Pennsylvania Family Law

Let’s Bail Out the Divorce Lawyers!

So saith the dean of the matrimonial bar, Raoul Felder, in a tongue in cheek piece published in this weekend’s Wall Street Journal. What line do I get in tget my bailout money?

9 Questions To Ask The Divorce Lawyer (Before You Write The Check)

Selecting the lawyer that will represent you is one of the most important decisions that you will make in your divorce case. You should try to find a lawyer who is skilled, competent, and who regularly handles family law and divorce cases. Seek someone who is responsive and willing to communicate with you throughout the divorce process. Ask for recommendations from your friends and family members, but in the end, trust your own judgment.

Schedule a consultation appointment with the lawyer. This will give you an opportunity to evaluate how you are treated by the staff and will give you some time to interact with and interview the lawyer. After spending thirty minutes to one hour with the lawyer, you should have a good feel for whether he or she is the right lawyer for you. One factor that is often overlooked is whether a lawyer’s personality compliments yours. You divorce lawyer is someone with whom you will be sharing many intimate details of your life as well confidential financial information. He or she must be someone with whom you are comfortable and whom you trust.

During the initial consultation with the potential lawyer, you may consider asking him the following 9 questions:

1. Do you specialize in family law? If you needed back surgery, would you go to a general practitioner? Of course not. Likewise, there are many lawyers who are general practitioners that will handle a divorce case. In addition, they take business matters, bankruptcies, criminal cases, etc. That is not the type of lawyer you want handling your divorce case. Ask them what percentage of their practice is divorce and family law matters. If it is not at least 50%-75% (I’d prefer 90-100% if it were my case) of their practice, go elsewhere.

2. What would be the fee arrangement for you to handle my divorce case? Divorce lawyers normally set fees in one of two ways: they either charge a fixed fee for the entire case, or they charge a retainer against which they bill an hourly fee. Make sure you completely understand how you will be billed. A good lawyer will want to make sure that you completely understand and are comfortable with the fee arrangement. If you have any questions, ask.

3. What other costs can I expect? In addition to lawyer’s fees, there are other costs that are typically associated with your divorce case such as court costs, subpoenas, and sometimes such things as private investigator fees, depositions, etc. Ask the lawyer what types of costs are likely to be involved in your case and how much you can expect to pay for them.

4. Will you send me monthly itemized bills showing the time that you spent on my case and the expenses incurred? If you are being charged by the hour, the lawyer should systematically keep you updated with regard to your trust account balance. If you ever have a question about a charge on your bill, talk to the lawyer about it. Address it sooner rather than later. If you are being charged a fixed fee, this is obviously not an issue. You will know up fron what the entire fee is. The only statements you should expect to receive is for costs that have incurred on your case (such as for subpoena fees, filing fees, etc.)

5. Do you have any resources that you can make available to me to help me reduce the pain and expense of divorce? Obviously, going through a divorce can be a very traumatic experience. A lawyer that is willing to educate you about the process and the law affecting your case will help remove some of the concerns that you may have.

6. Who else will be working on my case? Other lawyers, paralegals, and/or staff members will often perform work on your case. You want to be sure that the others work on your case are also competent and experienced. Also, find out at what hourly rate you will be charged for their working on your case, if at all. The hourly rate for less experienced attorneys and/or paralegals should be lower than that of the primary attorney on the case.

7. What efforts will you make to try to settle my case? The majority of divorce cases settle. Some are settled before they ever get to the lawyer (that is to say that the parties have already reached an agreement and the divorce lawyer is only needed to draft the paperwork). Others settle on the day of the trial, in a room outside the courtroom, and still others settle at any stage in between. You want a lawyer who is willing to communicate with your spouse and/or your spouse’s lawyer (if he or she has one), to try to settle the case. Many lawyers will not make a deliberate effort to settle your case, but rather will prepare the matter for trial and only settle it if the other side takes the initiative or if it happens to settle on the day of court. This type of lawyer can cost you thousands of dollars in unnecessary legal fees. Additionally, you should ask what the lawyer thinks about mediation. Mediation is becoming more prevalent in divorce cases [Editor’s Note: It is required in most Georgia courts before a trial, or, in some cases, even before a temporary hearing]. If you think that it may be helpful in your case, you should ask the lawyer to explain the costs and benefits associated with mediation.

8. What I can do to keep my costs down? By taking an active roll in your case, there are certain fact gathering steps that will reduce your legal fees. If a lawyer is charging you by the hour, you may be better off gathering many of the financial documents and other information rather than relying on the lawyer’s office to do it.

9. Do you survey your clients to measure their satisfaction? You should not let a negative answer to this question preclude your allowing the lawyer to represent you. Because so few lawyers actually do survey their clients, there are many very good competent lawyers who don’t do this. However, all other factors being equal, a lawyer that surveys his clients to determine their satisfaction, is likely to render better service to his clients as he is more attuned to their feedback.

As you ask the above questions and make a decision about hiring a lawyer, keep in mind that you have a right to expect your lawyer to do the following:

Once you have found a good lawyer, remember that he works for you. Do not be intimidated by him. Do not hand over control of your case without question. The lawyer should be willing to explain the decisions that need to be made during the process of your divorce as well as his recommendations. However, in the end, you are the one who makes the decisions. Ultimately, if you are not satisfied with the lawyer, remember that you have the absolute right to terminate your relationship with him at any time, for any reason. Be careful in doing so, however, if you have a Court date looming. This can cause unnecessary delays or, worse, result in you having to proceed without proper representation.

Source for post: Georgia Family Law Blog

Life Events Can Cause Problems With the IRS

Did you know that changes in your lifestyle could affect your taxes? When these changes happen, you will need to make adjustments to avoid creating IRS Problems.

Have you recently gotten married? If you have changed your name, you will need to notify Social Security to get your name changed on your card. You will also want to check out community property issues.

Have you recently divorced? Again, if you have a name change, make sure you contact Social Security. You also need to be aware of innocent spouse relief especially if your ex-spouse has IRS Problems. There are child custody tax issues, alimony issues, and community property issues you need to be aware of.

If you have had a change of address, it is important to notify the IRS so you will continue to receive its correspondence. Use Form 8822 (Change of Address) for this notification. If you fail to do this, you might miss a correction notice, an audit notice, or notification of asset seizure. Remember to keep track of your moving expenses, as these may be deductible.

Have you had a child recently or adopted a child? You will now be able to receive child tax credit. Also, did you know you are allowed education credits?

A change in jobs or loss of a job will also affect your tax return. If you work in a job that allows you to receive tips, these need to be reported. If you use your home or car for business purposes, there are specific allowances for these. You will also want to check into cafeteria plans and medical savings accounts.

Have you become a first time homeowner or have you sold a house recently? Both of these processes will give you added tax allowances.

If your life has been affected by a disaster or theft, you may be able to receive tax relief. People with disabilities have specific allowances that apply to them.

If you have retired recently, your IRS status has changed. You will want to check out the allowances you are now able to take.

If you have experienced IRS Problems in the past and have chosen to file for bankruptcy, this will change how you prepare your taxes.

Source: IRS Problem Solver blog

Happy (belated) Blogiversary to Me

One year ago yesterday, I made my first post to this blog. Over the past year, the daily readership, and your comments, have grown. To those of you reading, please accept my thanks. And please keep coming back. Thanks!

This Week’s Sign That The Apocolypse Is Upon Us

This from a blog called Sid in The City:

Apparently officials in Broward County, Florida, don’t spend their waking hours fretting about the divorce rate in this country, because they just made getting a divorce even easier than it was. You can now do it online. The new county service provides for Divorce Applications, Motions for Small Claims Court, and Tenant Evictions, all on one nifty little site.

Now I don’t know if divorces and ‘small’ claims belong in the same place.
If they had a Big Claims Court, I could see that.

Tenent Evictions? Well, in a round about way, I guess,
because in a divorce, someone is definitely getting tossed out.

For the record, I think that this is a bad idea.

More on Alternative Billing

A little while ago I posted here regarding my belief that alternatives to hourly billing were best in many, if not most, cases, including family law cases. Ben Stevens at the South Carolina Family Law Blog has taken up the issue. Here is Ben’s latest post on this subject (and, for what it is worth, I agree completely with Ben, and disagree with his critics):

My two articles published last week (here and here) on the subject of using fixed fees in family law cases have created a bit of a buzz. Some bloggers, like Grant Griffiths of the Kansas Family Law Blog, agree with me. Mr. Griffiths writes that he has been using fixed fees in his family court practice for over three years, and he agrees with me that this method benefits both his clients and himself.

However, others, such as Daniel Clement of the New York Divorce Report disagree and still advocate the “hourly” billing model for his family law cases. Mr. Clements questions whether fixed fees are appropriate in anything other than “simple” cases, i.e. those that are limited in scope, and he believes fixed fees to be inappropriate in more involved cases. He focuses his concern on the possibility that parties in family law cases might take “irrational and economically untenable positions fueled by emotions.”

I probably had the same type of concern before I began handling cases in this manner. However, after using this method for a few years, I can say from experience that it is unfounded. Among other things, I use the following two methods to help prevent this from being a problem in my practice:

1. I am very, very selective in choosing which clients I agree to represent. I estimate that I reject approximately one-half of the potential cases that I could accept. I only agree to represent those clients that meet the following criteria: (a) the client’s goals in the case are reasonable; (b) the client is willing to help my office work on his/her case; and (c) the client is someone that I truly want to help. There are other more subtle criteria that I subconsciously apply, and I will admit that a lot of it is done by “gut feeling”. However, after doing this for so long and handling so many cases, my gut feeling is right the vast majority of the time.
2. In most family law matters, I usually break the case down into different phases, at which portions of the fixed fee will be due and payable. This can be done in different manners, such as by time or by status of the case, but the point is that if a case gets resolved during any particular phase, there are no additional attorney’s fees due. This scenario gives the client incentive to help resolve the case sooner rather than later if a reasonable resolution is possible, but at the same time, the client is protected and knows his total cost if it is not. Having all of this information available to the client up front helps him/her better assess any settlement offers and the case in general as it progresses.

Mr. Clement’s post made me wonder about his thoughts on these questions:

1. How does he handle “unreasonable” clients that he is representing on an “hourly” basis? I believe that the problem he references is more with the clients themselves than with the manner of charging for the attorney’s time. Back when I did charge by the hour for my time, I would typically withdraw from the representation if my client was acting unreasonably. I still have that same option available to me now while using a fixed fee, but it is very rare that I have to exercise that option because of my stringent client selection criteria as discussed above. Either way, I do not want to represent unreasonable clients, period.
2. Does he agree with the harsh opinion expressed by Robert Hirshon, former president of the American Bar Association, that “[t]he billable hour is fundamentally about quantity over quality, repetition over creativity”? I believe that clients don’t care how long it takes you to produce those results – they only care about the results themselves. I believe that the hourly rate can encourage (or at least reward) inefficiency on the attorney’s part, because the longer it takes to do something, the greater the fee charged to the client. Also, if I were the client, I know that I would feel uncomfortable in effect writing the “hourly basis” lawyer a blank check and hoping that he/she keeps the fees as low as possible.

I challenge Mr. Clement to handle just one case on a fixed fee basis and to then post his thoughts about doing so. I am confident that should he do so, he will quickly see why I am such an advocate of this method. I handled cases on an hourly basis for over a decade, and I can say without hesitation that the fixed fee basis is vastly superior for both attorneys and their clients. I invite others to let me know their opinions on this topic by posting their comments.

Source: South Carolina Family Law Blog

Wedding Performed By Minister Ordained Via Internet Invalidated By PA Judge

PhillyBurbs.com reports that a judge in York County, Pennsylvania has invalidated a marriage performed by a “minister” who was ordained over the internet by the Universal Life Church (the same outfit discussed in a New York Times article to which I linked in a previous post). Pennsylvania law specifies the categories of people authorized to conduct a valid marriage ceremony: mayors, judges, and ministers, priests or rabbis “of a regularly established church or congregation.” The “minister” in question testified that he did not have a congregation with which he met regularly, did not have a place of worship, and was not a member of the Universal Life Church before his ordination. Given those facts, the likelihood that this decision will be overturned on appeal is, in my view, close to nil. Evidently the Universal Life Church is mulling an appeal of the decision. I can understand this – I would assume that the Church does not want to leave the door open to the argument that it is not a church as that term was intended in the Pennsylvania statute. That is an argument, I would say, best left for another day, and about which I express no view one way or the other. My advice – if you want your friend or relative to conduct your marriage ceremony, and he or she is not a mayor, judge or priest minister or rabbi in an acknowledged, mainstream religious denomination, do your due diligence, lest you make a big mistake.

Tips For Success At Your Settlement Conference

Many cases can get settled simply by getting the parties together to talk. This type of informal meeting is called a “settlement conference.” The following steps can help you prepare for a settlement conference and improve the chances of its success:

1. Identify the issues in your case.
2. Understand how the law affects your case.
3. Know the estimated costs of trial.
4. Remain open to unique opportunities.
5. Keep a few secrets.
6. Be determined.
7. Be ready for a little give and take.
8. Be patient.
9. Get it in writing.

Source: “Settlement Conference Success” by Helene Taylor, published at The Modern Woman’s Divorce Guide.
SOURCE FOR POST: South Carolina Family Law Blog

Source: Georgia Family Law Blog