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IMPLICATIONS OF GPS PHONE TRACKERS ON DIVORCE CASES
The evolution of technology continues to have implications for lawyers and clients in divorce and custody cases.
Smartphones store GPS coordinates and information about a user’s whereabouts which can allow someone to obtain very detailed information about where a user has been. Additionally that information is transmitted back to the companies to use for research.
As with any technology, there are good and bad uses for the technology.
Pros:
1. Law enforcement uses the information to obtain criminal evidence and obtain convictions;
2. Phone users get to use apps for maps, restaurant reviews, etc.;
3. The information help companies learn more about you so they can market goods or services that you may be interested in.
Cons:
1. Further erosion of your privacy and the chance for hackers to obtain information about you that can be misused. This can be used against you in many ways. Stalkers can hack into your phone and get information to discover where you live or what your daily patterns are so they can contact you. This has serious ramifications for victims of family violence. In divorce/custody cases, the information is a double edged sword depending on which side of the case you are on because lots of information can be obtained to determine what is really going on with someone. Did they violate a court order about drinking by going to Clubs? Did they really take the kids to school? Do they have a job?
There is an entire generation growing up in an era where there is basically no privacy and no concerns about losing privacy (“Facebook Generation”). The Facebook Generation is generally not concerned about privacy; however, we need to be aware of situations in which we may want to increase our level of privacy.
It is important to note that there are state and federal laws that govern hacking into cell phones, and one should always seek legal counsel before engaging in such activity.
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Money can be a major source of contention in marriage, and it is certainly a hot button item at the time when couples decide to divorce.
Too often people fail to realize that a marriage is the beginning of business relationship as well as an emotional one. Upon marriage, the couple begins to create a community estate (absent a premarital agreement), and also becomes liable for debts created during the marriage. A spouse can also become indirectly responsible for premarital tax liabilities of the other spouse, because the IRS has the authority to attach tax refunds and levy against accounts and real estate that is community property.
A little pre-divorce financial planning can save a lot of conflict down the road, and as difficult as the conversations may get, they are well worth it to protect your financial future.
Before you say “I Do”:
- Exchange credit reports
- Discuss how bill-paying responsibilities will be handled
- Exchange recent tax returns
- Discuss expectations about how bank accounts will be maintained
- Discuss expectations for saving money
- If one or both of you have children from prior marriages, discuss expectations for handling their expenses.
- If there is an expectation of monetary gifts from parents, or receipt of inheritance, discuss how those will be handled (under Texas law they are the separate property of the recipient; however, many times the other spouse considers it “their” money also.
- Consider beneficiary designations on life insurance, retirement accounts, and bank accounts.
- Review your estate planning.
- Determine if a premarital property agreement is appropriate.
- Consider meeting with a financial planner to assist you with putting together a financial plan for your future – sometimes the conversation is easier with a neutral professional to guide it.
Our firm can assist clients to protect themselves financially as they enter into a marriage. Jody Lynn Johnson, P.C.; www.jljfamilylaw.com; 469-429-0093.
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A ruling is expected Tuesday in a contentious case testing the role of religion in divorce and child custody disputes, and the extent to which courts can involve themselves in religious observances, according to a recent article in the Chicago Tribune.
The divorce of Joseph and Rebecca Reyes began receiving national attention last year after Joseph, the father, violated a court order by having the couple’s daughter baptized in a Roman Catholic church. Rebecca Reyes is Jewish, has full custody of their 3 year old, and says that prior to their break-up Joseph had converted to Judaism and agreed that the child would be raised in the Jewish faith. According to the Los Angeles Times, a judge hearing their case refused last month to issue a temporary injunction that would have allowed Joseph Reyes to take the girl to church on Easter Sunday.
By all accounts the Reyes case has become particularly bitter. Joseph Reyes claims that Rebecca has only made religion an issue out of spite. Rebecca Reyes’ attorneys, speaking to the Times, accused Joseph Reyes of using religion “to deflect attention from the father’s lack of financial support and parenting skills.”
All of which places the courts in a difficult situation. Joseph Reyes contends that America’s traditional separation of church and state makes any court ruling on his daughter’s religion unconstitutional. Scholars studying the case are not as certain. Eugene Volokh, a first amendment expert at the University of California, told the Tribune that courts, as a rule, can only intervene in a child’s religious upbringing if “the religious conflict” between the two parents “puts that child at risk.” How risk is determined – especially when it concerns the emotional, as opposed to physical, well-being of the child is a complex matter and is subject to wide interpretation.
Texas courts don’t typically make specific orders related to the religious upbringing of children of divorce. §153.074 of the Texas Family Code states that “Unless limited by court order, a parent appointed as a conservator of a child has the following right during the period that the child is in the possession of the parent:
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The right to direct the moral and religious training of the child.”
The Texarkana Court of Appeals reviewed a case in which the trial court modified a provision in the prior court order by removing the requirement that the possessory conservator take the children to the managing conservator’s church when he had possession of children. The managing conservator appealed and said the trial court violated her right to determine the religious training for her children. The Court of Appeals disagreed and denied the appeal.
It is permissible for parents to make agreements regarding the religious upbringing of their children and to incorporate the agreements into the Parenting Plan which will then be approved by the Court. Our firm reviews these options with clients to make sure they are properly addressed. Jody Lynn Johnson, P.C.; www.jljfamilylaw.com; 469-429-0093.
Chicago Tribune: Religion used as a weapon in divorce
Los Angeles Times: Child custody and religion
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Nancy Kurn (CPA, JD, LLM, MBA, CDFA)
A prenuptial agreement is a contract that two parties enter into in contemplation of marriage. It can also be referred to as a “premarital agreement,” “antenuptial agreement,” or simply a “prenup”; in Canada, it is called a “marriage contract.”
In most states, until the 1980s, prenuptial agreements were deemed against public policy and not valid to the extent they pertained to divorce or separation. They were considered against public policy, because it was thought that they encouraged divorce and allowed the husband to thwart his legal obligation to support his wife. Prior to that time, they were valid to the extent that they pertained to the death of one spouse.
A postnuptial agreement (a marriage contract in Canada) is similar to a prenuptial agreement except that it is entered into after the parties have married. In some states, postnuptial agreements are not valid if either spouse is contemplating divorce or separation.
Canadian law also recognizes cohabitation agreements for couples of the same or opposite sex that currently, or intend to, live together.
First, a brief overview of U.S. law. In community-property states (Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin), any assets that are acquired during the marriage are marital assets and divided equally between the spouses upon divorce. In equitable-distribution states, any assets acquired during the marriage are divided between the spouses in a fair and equitable manner. In many states, the appreciation in value of a separate asset during the marriage is a marital asset.
Generally, a prenuptial agreement sets forth how the marital assets will be divided in the event of divorce or either spouse’s death. It can also address what assets remain the separate assets of each spouse and what happens to the appreciation in value of the separate assets. For example: Joe has an IRA worth $200,000 at the time he marries Barb. When they divorce, six years later, the IRA is worth $500,000. In some states, $200,000 would be considered Joe’s separate property and $300,000 would be considered a marital asset to be divided between Joe and Barb.
Barb has a home worth $250,000. Joe moves in after they marry, and they use the home as their marital home. When they divorce, the home is worth $400,000. The court is very likely to decide that Barb made a gift to the family, classify Barb’s home as a marital asset, and split the entire asset. If Joe and Barb created a prenuptial agreement, they could have agreed that Joe’s IRA — including any appreciation during the marriage — would have remained his separate property and that Barb’s home — including any appreciation — would have remained her separate property.
Although there are limitations in many areas, prenuptial agreements may also cover issues of spousal and child support. The spouses can agree not to contest any estate-planning documents prepared by the other spouse and to give up certain statutory rights upon the death of one spouse. They can also agree to file joint or individual tax returns during the marriage.
Some couples also cover issues that arise during the marriage, such as their children’s religious upbringing, how household duties will be divided, how finances will be handled, and sometimes even how often the couple will have sex. These provisions are best left out of the agreement, because a judge has no mechanism to enforce them. In addition, you have to be very careful with these provisions, because if they are too unusual, the entire agreement may be deemed invalid by a judge.
In addition to addressing how the assets will be divided, it is also important to decide how debts, particularly those acquired before the marriage, will be divided.
Limitations
Generally, two parties can agree to anything that does not violate any law or oppose public policy (interest). For example, contractually encouraging someone to divorce would be against public policy and invalidate the agreement. A prenuptial agreement has several limitations; some are unique to prenuptial agreements:
- The parties must fully disclose their assets to the other party. Otherwise, one spouse is giving up rights to assets that he or she knows nothing about.
- Some states do not allow prenuptial agreements to limit or eliminate spousal support. In addition, the agreement may be deemed invalid if the spousal support is very high, because the agreement then encourages divorce and is against public policy. In Canada, spousal support provisions are valid.
- Child support cannot be limited pursuant to a prenuptial agreement. In some states, child-support provisions will be upheld as long as the support is not less than the statutory guidelines. In other states and in Canada, provisions regarding child support are invalid. Anything limiting child support to less than statutory amounts cannot be enforced. Child support is governed by state guidelines in all 50 states.
- In both the U.S. and Canada, any agreement regarding child custody or visitation in a prenuptial agreement is invalid.
- A judge could deem the agreement void based on typical contractual theories such as fraud, misrepresentation, duress or coercion. A unique circumstance with the prenuptial agreement is the timing of the signing of the agreement. If the groom takes the agreement to the bride the night before their wedding, then she could certainly argue that she signed the agreement under duress, or that she was coerced into signing it. To avoid the argument that the agreement was signed under duress, it should be signed long before the wedding takes place. Some would argue at least 30 days and others recommend before the wedding invitations are sent to the guests.
- The prenuptial agreement cannot be unconscionable. If one spouse is left destitute, the court may decide that the agreement is not valid, because it is unconscionable.
- In Canada, any provision in the prenuptial agreement regarding the right to live in the matrimonial home, or the right to sell or transfer the matrimonial home, will be invalid.
Benefits
Prenuptial agreements are not just for the wealthy. They are particularly useful in second marriages, where one or both spouses have children from a previous marriage.
Mike and Carol are going to be married. Mike is a widower and has three sons. Carol is a widow with three daughters. Both of them have assets that they are bringing to the marriage, including the death benefits they received upon the death of their first spouses. Mike and Carol are contemplating hiring attorneys to prepare a prenuptial agreement to ensure that the assets they received from their deceased spouses will go to their respective children.
A prenuptial agreement has numerous benefits. Some of these benefits include:
- The certainty it provides as to what happens in the event of a divorce or the death of either spouse.
- Protecting children from a prior marriage.
- It is prepared, in theory, when there is harmony instead of at a point when the relationship is very contentious.
- The parties can negotiate the terms of the agreement; instead of having a third party (a judge) and state and provincial laws decide how to divide the couple’s assets.
Challenging a Prenuptial Agreement
If you’re going to have a prenuptial agreement, you should each hire a lawyer to ensure that it is valid and will hold up in court. Do not try to prepare one yourselves! Steven Spielberg and Amy Irving allegedly drafted their prenuptial agreement on the back of a napkin; the court did not recognize it as a valid contract, and it has been reported that Irving received over $100 million in assets after their four-year marriage ended.
A prenuptial agreement can be successfully challenged in the following ways:
- If it has not been signed. Most states require the prenuptial agreement to be signed by the party to be charged with the agreement.
- By proving the other party did not fully disclose their assets.
- By proving that you were not represented by independent counsel. Each party should be represented by his or her own attorney. Generally, this alone will not be sufficient to invalidate the agreement.
- By proving that the agreement was unconscionable when it was signed.
- By proving that the agreement is now unconscionable based on today’s circumstances.
- The agreement can be challenged based on duress, due to the timing of the signing.
- It can be challenged on any other typical contractual theory such as fraud, misrepresentation, or coercion.
Additional Issues to Consider
Each spouse should draft their estate plans so that they conform to the terms in the prenuptial agreement. You do not want to force your children and surviving spouse to get involved in litigation involving your estate. The costs could result in everyone getting significantly less.
You may also want to consider using life insurance to replace assets that go to either your children or your spouse. For example: Mike and Carol purchased a new home with the proceeds from the sale of Mike’s previous home. Mike wants Carol to have the home upon his death. He can purchase insurance, naming his sons as beneficiaries, to replace the proceeds from the sale of his previous home.
Prenuptial agreements can be amended or revoked at any time. Some couples add a sunset provision terminating the agreement after a certain period of time, such as ten years.
Case Study: Sarah and Brad
Sarah has a technology business that she thinks is worth approximately $1,000,000. In 2003, it had gross sales of approximately $750,000 with profits of approximately $300,000 (including Sarah’s compensation). The income has steadily increased at about 20% annually. She is about to marry Brad. This will be the first marriage for both of them, and neither of them have children. Brad’s net worth is approximately $50,000 and his annual income is approximately $40,000 and increases at about 3% per year. Should Sarah have Brad sign a prenuptial agreement to protect her business?
If Sarah wants to protect her business and its future growth, then she should have Brad sign a prenuptial agreement. Otherwise, any future increase in the value of the business during the marriage would likely be split between both parties. Without a prenup in place, if Brad sometimes helped Sarah with the business, then a judge may find that the business is a marital asset and split the business. Sarah must hire an expert to perform a business valuation; better still, she and Brad could jointly decide on the expert that will perform the valuation, or each of them could hire their own expert and then average the two valuations. If this is done, then Brad would have a difficult time challenging the value of the business.
This article originally appeared on www.divorcemag.com. For more information on prenuptual agreements, visit www.jljfamilylaw.com
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Beginning in the 2009 tax year, there were some significant changes to the Child Dependent Exemption Tax Deduction.
Changes made by the Internal Revenue Service are as follows:
1. The custodial parent, for 2009 & forward, is the one with whom the child resides the greater number of nights during the year, regardless of the divorce decree terms.
2. You must obtain IRS Form 8332 (Release of Claim to Exemption for Child of Divorce or Divorced Parents) to claim the exemption if you are the non-custodial parent. The divorce agreement or court order will not be used to substitute for IRS Form 8332.
3. The custodial parent can unilaterally revoke the release of a child exemption for calendar years 2009 & forward, even if the release was made prior to 2009.
The parent claiming a dependency exemption on the child/children is the only parent eligible for the following tax benefits:
• Dependent Exemption Deduction
• Child Tax Credit
• Child and Dependent Care Credit
• Education Credit or Education Expense Deductions
• Earned Income Credit
• Head of Household Filing Status
With all the new changes, all non-custodial parents who plan to take a dependency exemption should obtain IRS Form 8332 for 2009 & forward tax years. A divorce agreement or court order cannot be substituted!
In any future settlement agreements that include a provision for a non- custodial parent to take a dependency deduction for one or more children in one or more future tax years, have the custodial parent complete IRS Form 8332 when executing the settlement agreement. Sometimes it is very difficult to get ex-spouses to sign off on papers at a later date!
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Payment of college costs is a concern of most parents, and especially those going through a divorce. Although the payment of college expenses may be negotiated in a divorce and specified in a decree of divorce, the courts do not have the ability under Texas law to order a parent to pay for college expenses for a child. Once a child graduates high school and is 18 years of age, they are no longer eligible for child support; therefore, the court cannot make orders for their support.
Student loan reform legislation was signed into law on March 30, 2010 that promises to lessen the financial burden for those applying for student loans. The law affects loans that originate beginning July 1, 2010. Besides increasing money available for the Pell grant program, the program is supposed to lower the fees charged because banks will no longer be middlemen in the process. The law also helps students with regard to paying back the loans. Monthly payments will be capped at 10 percent of discretionary income rather than 15 percent.
For additional information see: http://naicu.edu/news_room/the-student-loan-reform-bill-a-perspective
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Under the Texas Family Code, separate property consists of (1) property owned or claimed by a spouse before marriage; (2) property acquired by the spouse during marriage by gift, devise, or descent, and (3) recovery for personal injuries sustained during marriage, except for recovery for lost wages or earning capacity.
Community property is defined as all other property acquired during the marriage other than separate property.
These rules apply whether a marriage ends by divorce or death of a spouse. For instance, if a person’s Will gives separate property to someone, then it will be important to determine what the separate property consists of.
There is a higher standard of proof under the law to prove a claim for separate property. At the time of divorce, all property is presumed to be community property unless proven otherwise. Separate property must be proved by clear and convincing evidence. The key to proving a claim for separate property is good record keeping. Maintain documents of assets and debts existing on the date of marriage, and keep on-going records. It is not sufficient to show you had an investment account at marriage with $10,000 in it, and that the account at divorce is your separate property. Why? Income earned during marriage from separate property is community property (because it was earned/acquired during marriage). Additionally, it is unlikely that there would be no deposits or withdrawals in the account during the marriage, and it needs to be determined if those were separate or community.
Let’s look at some common divorce scenarios:
1. Investment account value was $50,000 at date of marriage and $100,000 at date of divorce.
There will most certainly be fluctuations in the value of stocks during marriage, up and down. Those don’t change the character of the stock. One share of Southwest Airlines stock worth $50 at marriage is still separate property at divorce even if the stock is now worth $75.
Interest income is community. Deposits into the account after marriage from community property (e.g. wages) are community, and any investments purchased with those funds are community.
The typical scenario at divorce is that the investment account is mixed: community and separate. If the spouses cannot agree on what is separate then it is necessary to hire a forensic accountant to trace the account from the date of marriage to divorce. This is where good records come into play. Without them it is unlikely that a clear and convincing case can be made.
2. House Owned Prior to Marriage, Sold after Marriage, and Proceeds used to Purchase New Home with Spouse
Maintain all closing documents from the sale of the first house and purchase of the second house. Keep bank statements to show what happened with the proceeds from the sale of the first house (e.g. deposit into bank account, copy of check and statement showing money going toward the purchase of second house).
This is another typical situation of mixed title, because usually there is a down payment, which, in this case, is separate property, and a mortgage note signed by the husband and wife. The separate property interest equals the down payment divided by the purchase price.
The Texas Legislature allows spouses to change the rules of characterization, and that can be done through pre-marital and post-marital agreements. There are technical rules to follow in drafting the documents, and you should consult an attorney if you think that you need such an agreement.
In the meantime, keep all of your records
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By Jody L Johnson of JLJ Family Law
Health Insurance for Divorced Women
Most women going through divorce are covered as a dependent on their husband’s health insurance; therefore, it is important to be aware of your options for coverage post-divorce.
1. COBRA
COBRA (The Consolidated Omnibus Budget Reconciliation Act) is a federal mandated law that was designed to protect employees and their families from losing coverage as a result of divorce, death, job loss or other specified circumstances. If your spouse’s coverage is through a company that employs at least 20 people, then you are eligible for coverage for up to 36 months post divorce. Unless you and your spouse agree otherwise, you will be responsible for payment of the premiums which can unfortunately be significant. As a result, many view COBRA coverage as a stop-gap option until better coverage is available. Under COBRA, you do not continue as a dependent on the policy. Instead, you are offered individual coverage similar to what you had as a dependent. It is fraudulent to remain as a dependent post-divorce. It is possible to negotiate for your spouse to pay some or all of the cost of COBRA coverage either as part of the financial settlement or as a form of alimony.
2. Current Employer
If you obtain employment and your employer offers an affordable health plan, then it is recommended that you look into enrolling in the plan. Unfortunately, many divorced women who seek employment after divorce, find that employers either don’t offer insurance benefits or don’t offer enough hours to qualify to enroll in the health insurance program.
3. Individual Health Plans
An individual policy may be your best or only option in some situations. It is important to weigh the cost of the policy against the benefits and perceived need of coverage. There are policies that are less costly for healthy individuals that basically insure against catastrophic health concerns. Essentially you would self-insure for everything else. Try to negotiate for the cost of coverage to be factored into the settlement, especially if your cost will be much greater than your spouses cost.
What is the impact of the new Health Care Reform legislation?
The full impact is yet to be seen. However, one important cornerstone of the new legislation that will significantly benefit divorcing women is the ability to obtain health insurance regardless of pre-existing conditions. It is not uncommon for women of divorce to have one or more pre-existing conditions. Those conditions can either prevent them entirely from obtaining insurance, or preventing them from obtaining insurance for the condition they most need it for. The new legislation is designed to eliminate this impediment. For more information about how the new legislation may affect you, please refer to http://bit.ly/az5LM7
For additional answers to questions about health insurance and divorce, please refer to http://bit.ly/bu36aW
For more information on family law solutions, visit www.jljfamilylaw.com
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Although Texas does not currently permit same sex couples to marry, and the issue of whether same sex couples legally married in other states may obtain a divorce in Texas is currently be litigated, it is possible to enter into contractual agreements regarding many issues that same sex couples face when they are beginning or ending a relationship
Protecting and Defining Financial Interests and Property Rights
When entering into a relationship, it is important to define financial and property issues such as: how bills will be paid, how property will be owned (and divided upon separation), financial support for a partner. It is possible to draft cohabitation agreements that address the issues that are important to couples in order to achieve their goals.
Same Sex Parenting
Whether a partner has children from a prior relationship, or the couple has adopted a child or conceived through artificial insemination, it is important to ensure parental authority for non-biological parents and to protect the child’s continuing relationship with parents. In such situations, it is recommended that parenting agreements be memorialized in writing.
Ending a Relationship
Many same sex couples assume they have no process to assist them with ending a relationship. However, there are two viable process options available: mediation and collaborative law. Both processes have the advantage of being confidential, and give the couple a forum for reaching contractual agreements regarding the division of property, child support; partner support, child custody, and other issues that are specific to the needs of each particular family. For more information on collaborative law, visit www.jljfamilylaw.com.
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By Jody L Johnson
As Seen in Divorce Magazine
How would you like to resolve your family-law dispute in a manner focused on the needs of the clients and not on pointing the finger and tearing down each other? How would you like to take control over the outcome of your case, rather than surrender control to lawyers, judges, or strangers on a jury? If this sounds appealing to you, then consider resolving your case collaboratively.
Collaborative law came to Texas in 1999, and it is increasingly becoming the process of choice for clients with family-law disputes. Collaborative law is client-centered. The entire focus is on the goals and needs of the client. The process is designed to provide the clients with a forum in which to find a best possible outcome for all parties and their children. A traditional litigation model is not client-centered. It is driven by the attorney and judge, as well as the rules of procedure and evidence. The primary focus is on getting ready for trial (even through 95% of cases settle), and ending the lawsuit, but not on the quality of the end product.
The process also provides a safe and confidential forum for the resolution of disputes, whereas the litigation model is public and the parties are subjected to cross examination, depositions, and court-imposed rulings. Parties who agree to handle their dispute collaboratively agree that they will not go to court to resolve disputes. They also agree to schedule four-way settlement conferences that involve the collaborative lawyers and each party. The meetings are private and organized — agendas are mutually prepared to list topics to be discussed and resolved. The rules of evidence do not apply; therefore, the parties are free to discuss whatever is important to them, regardless of whether a judge would consider it. Likewise, the parties have the ability to create tailor-made settlements for their particular family. Many times, the parties reach agreements that a court would never consider or have the authority to impose. And most importantly, nothing happens that the client does not agree to.
A frequent concern raised by clients is that their spouse may not be forth coming in providing information. Parties who contract to handle their case collaboratively also commit to full disclosure of information. Your collaborative lawyer is still there to make sure that all important information is disclosed. Additionally, many clients have a misconception that a litigation model will insure that they receive full disclosure. In fact, a litigation model is an ideal process for parties who want to play “hide the ball”, because there are many ways to abuse the court rules or use loopholes to avoid disclosure.
In order to effectively work, collaborative law requires each party and attorney to agree that if the parties cannot settle their dispute collaboratively, then the collaborative attorneys must withdraw and the parties must hire litigation counsel. This may sound scary to clients at first; however, this is what makes this innovative process work. Everyone has a stake in continuing to “think outside the box” in order to problem-solve, rather than run to the courthouse. Otherwise, the collaborative lawyers are out of a job. Your collaborative lawyer is still present to assist you in gathering and assessing information, analyzing your options, and negotiating a solution. Additionally, experts are still used as necessary (e.g., psychologists, financial advisors, and appraisers). Collaborative lawyers have additional training in communication and negotiation skills to assist you, and they are committed to problem solving for their clients.
The skills that parties learn throughout the collaborative process allow them to end their divorce or other family law dispute in a dignified manner, and assist parents in working together beyond the end of their lawsuit.
For more information, visit www.divorcemag.com.
For more information on collaborative divorce and family law solutions, visit www.jljfamilylaw.com