WSJ - "How to Plan for a Divorce"

Here is another article I found that has decent information about preparing for divorce: http://online.wsj.com/articles/how-to-plan-for-a-divorce-1410049066

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Many times I find clients don't know enough about their financial affairs. This article lists financial affairs as its first point. The article states:

"1. Know What You Own and Make Copies.

Gather as much information as possible, as early as possible, regarding your family's finances..."

 

This is one of the most important things you can do as you prepare to initiate a divorce. As they say, information is power. Knowing what you own and being able to prove it can short-circuit some litigation.

I'm not sure I agree with every point. The fourth point may not do much for party:

"4. Watch the Timing.

Mr. Gambaccini suggests looking to file your divorce in a year when you're earning less money—for example, when you get no bonus or there is a big decline in the value of your investments. While a court will typically look at income over many years, having a recent decrease in earnings may lower future payments, such as alimony, he says."

 

In fact, depending on why a person is earning less money, this can backfire. Courts in Pennsylvania look for those people trying to spite their spouse by taking a downgrade on their jobs. If the court believes a party intentionally cut his or her salary, the court may impute the hirer income to the party. Timing is important and people need to consider their financial positions when filing. But I'm not sure how much mileage you will get in this area. 

 

The article list 4 other points to consider. They are all worth discussing with an attorney as you plan your divorce. You can use this as a guide for discussion during your initial meeting.

"STUDY: For children, there is NO 'amicable divorce'"

A study led by Dr. Jonathon Beckmeyer of Indiana University, found that children's problems were no worse if parents continued to fight with each other after the divorce. As an attorney who tries to keep divorces as civil as possible, this is a tough study to take. The article states:

"The impact of the split on youngsters is just as devastating whether or not the mother and father keep cordial links, it found. These recent findings undermine a Government-backed consensus that the harm caused to children by separating parents can be limited if the couple remain friends."

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I find this study difficult to believe. It definitely seems counter-intuitive. Unfortunately, couples will continue to divorce. It would be nice if they didn't. I wonder how it would compare to broken couples that stay together for the kids. Is the broken family the issue or the separation?

I guess a closer look at the study itself might be more enlightening. No matter what, this is not a reason to be unreasonable. Interesting read. less http://lnkd.in/dxdMM8t

Common Question - My spouse and I are divorcing amicable ... can we come in and see you?

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My firm is all about helping people divorce in an amicable fashion. We will work with one of the parties to draft agreements they both want. When we first start cases like this, many times, the person calling will ask us to meet with both parties. When we tell them we cannot meet with both parties, people are confused and get upset.

It is an ethical issue and places the firm in a bad position. When you talk to an attorney and have a question, you have an absolute right to know what is in your best interest and it is our obligation to give you an honest answer. What you do with the information is up to you but, again, we must give it to you. If your spouse has a question, he or she has the same right and his or her attorney has the same obligation. To do anything less would be a violation of an attorney's ethical responsibility. I have no problem when a client wants to take less or is getting more than they are entitled to for whatever reason. And if a spouse decides not to see an attorney, I cannot require it. But we cannot represent both parties and can only really talk to the person who consults with us.

I understand how people are confused. There are a couple methods that I know about to take the court battles out of the mix. But that does not necessarily remove the attorneys. There is the collaborative law process. That is where the parties sign an agreement to openly and honestly negotiate a settlement and agree to keep the case out of court. The parties and their attorneys meet to discuss the issues and develop solutions together.

Another method of proceeding through a divorce is mediation. The parties meet with a mediator to negotiate a resolution. Again, they agree to be open and work together. Once the parties come up with an agreement, the mediator reduces it to writing and gives them copies to discuss with their attorneys.

At least this is what I know about these two method. I feel it important to say I'm not trained or certified in either of these methods and I've explained the extent of my knowledge. The bottom-line is, as I understand it, parties still have separate legal counsel if they want representation even in the most cooperative processes.

We welcome people who want to work things out without the need of a court battle. For ethical reasons, we cannot represent or even appear to represent both parties to a divorce. It is a good thing if you are looking for an attorney to work with you, your spouse, and spouse's attorney in an open and respectful way.

Social Media Prenup; new conversations as the practice matures ...

"Would YOU sign a social media prenup? The rise in contracts banning couples from sharing embarrassing posts" http://dailym.ai/1nshr7Q

This article in the Mail On-Line talks about the rise in social media prenuptial agreements:

“The typical social media clause states that couples can't post nude or embarrassing photos that might harm their significant other's reputation

The penalty is usually monetary, with well-to-do couples in New York typically paying up to $50,000 each time they break the clause”

I'm sure everyone gets the no posting of nude photos part of the clause. But I question the "embarrassing photos that might harm their significant other's reputation" part of it. What does that mean?

One of the couple interviewed stated: 'What Jonathon and I do is he'll say, "This is an SMP [social media prenup] moment. Is this OK [to post]? Is this crossing the line?" It's two sentences, versus a paragraph or an hour [discussion]. It's not a big deal, anymore.'

Are we at a point in our society that we need to ask permission to post a photo on Facebook? Does that mean it must be embarrassing at the time the photo was taken or when it is posted to be actionable? What happens if it is posted and becomes embarrassing? Would that be actionable?

What if you met your wife in grad school. At the time she was a gun enthusiast. You take a photo at a shooting range during a weekend date. 15 years later, she is an activist and lobbyist against all firearms. Her hobby as a student went unnoticed. You post the photo from the shooting range on Facebook.  Did you violate the "embarrassing photos that might harm their significant other's reputation" clause? What if her organization let her go ... is it a violation then?

What about the penalty? The article notes "The penalty is usually monetary, with well-to-do couples in New York typically paying up to $50,000 each time they break the clause."

What about the less well-to-do couples? What about a mother who is marrying for a second time and all she has and wants to protect her IRA for her child from her first marriage? What could a couple in this earnings bracket expect to recover is a social media clause is added to the prenup and is violated? Or how about the vindictive spouse who can afford the penalty and violates the agreement for spite and offers the penalty?

I'm not sure there are answers yet. These are new and serious discussions attorneys will need to start having with their clients.  In this age of immediate electronic communications and past scandalous post, the points in the article seem to be valid.

What will be the end result? My concern is the prenup agreement will increase in cost, it may end up being tough to enforce, and it creates another battle field for divorcing spouses to fight. Don't get me wrong, it needs to be discuss. I'm just sorry we are at the point it does.