Category: Family Law

What Is Collaborative Divorce West Springfield

Family Law Attorney

The divorce process known as “collaborative divorce” is a variation on the concept of attorney-assisted mediation. Before I explain how the collaborative divorce process works, a few words about the genesis of this process will be helpful.Why did the process of collaborative divorce develop?

The concept of collaborative divorce is generally credited to Minneapolis family lawyer Stuart Web, who came up with the concept in the early 1990s.  Today, it is estimated that there are over 20,000 attorneys in nearly every state and a number of foreign countries involved in the collaborative practice.

The appeal of the collaborative process stems from the fact that the traditional American system of justice is not particularly well equipped to deal with the emotional nature of a divorce case.  Marital dissolution cases tend to be like square pegs trying to fit into the round hole of civil litigation.

Although legal rules and trends have attempted to recognize the unique nature of divorce cases and the issues they bring to the court, the fact is that in our Anglo-American system of jurisprudence, there must be a defined outcome – a winner and loser – but that type of finality does not often arise in the break-up of a family. 

In divorce, the winners and losers are not so easily defined, and certainly where children are involved, there is no “finality,” in the classic sense of the word. It is these shortcomings of the traditional mediation/litigation system that make collaborative divorce an attractive alternative to many people.How does the collaborative divorce process work?

The key concepts of collaborative divorce involve the mutual, free and voluntary exchange of information, and a climate of civility and respect for the individuals involved.  Each party hires his or her own independent counsel to provide advice and representation, but the parties’ expressed intention is to negotiate a settlement that treats everyone fairly, not to litigate.

In fact, the attorneys for the parties commit to exercise their best efforts to negotiate and finalize, in a civil, courteous and open fashion, a global settlement, and to withdraw from further representation and not take part in litigation should the collaborative process not be successful. The process can, and frequently does, involve the engagement of professionals who are neutral in their approach to the facts, to provide expertise and recommendations to the parties and their counsel on financial and non-financial issues, such as the division of parenting rights and responsibilities.

The collaborative process begins by putting these key concepts into writing, with the execution of a “Participation Agreement.” The participation agreement contains a general provision that all persons involved will treat each other with civility and courtesy, and more specific provisions for the free, voluntary and mutual exchange of information, so that everyone involved in the process will have complete knowledge and understanding of all salient facts.  The agreement also formalizes the disqualification of the attorneys involved in the event of the failure of the collaborative process.

The participation agreement will also commonly provide that neither party will attempt to take advantage of mistakes by the other party or by counsel; again, the spirit and intent here is to serve the best interests of all involved and eliminate some of the “gotcha” moments prevalent in a contested, litigated divorce. Confidentiality is a hallmark of the collaborative process, and the parties agree not to disclose, or attempt to use in subsequent litigation, anything that is said or done during the process.

From a legal standpoint, this confidentiality provision probably is not necessary, since the rules of evidence would likely bar any attempt to offer an admission made in settlement negotiations against a party’s interest, but the inclusion of this confidentiality provision serves two essential purposes. The first is to encourage the parties to speak freely and candidly, and the second is to achieve a result which will keep the parties’ personal and financial business out of the courtroom and away from the public eye.  Ultimately, this serves the parties’ interests and keeps the children out of the line of fire, thereby minimizing the impact of the divorce process on the children.

As noted above, the participation agreement will also provide for the engagement and compensation of neutral professionals, such as accountants, tax and financial advisers and mental health professionals, who will advise the parties on matters relating to finance and parenting choices. Due to their role as neutral advisers, the “hired gun” mentality, which often is so costly to the parties in contested litigation, is eliminated. Presumably, the parties receive professional advice unfiltered and unfettered by the professional’s usual desire to serve his or her master by shading things to suit the best interests of the person paying his or her fee.  The parties benefit from knowing they are receiving advice based upon the professional’s true feelings and analysis, and can, therefore, comfortably rely upon the professionals’ opinions.

 

Categories: Family Law

Documents Needed for a Divorce Investigation About Hidden Assets

 

A divorce lawyer or investigator usually will need the following documentation in order to begin an investigation into hidden assets: Financial disclosures Tax returns Bank statements Check registers Financial disclosures
Typical divorce procedures require that a divorcing couple disclose their assets and liabilities.

 These disclosures serve as the starting point in any financial investigation seeking assets that have been excluded from the marital estate (i.e., hidden assets). The information revealed in these disclosures ranges from the simplistic (e.g., if an asset is listed, it isn’t being hidden) to the basis for more sophisticated analyses and comparisons.

Tax Returns

The tax returns of an individual or a couple may be imperfect representations of the actual economic income of the person(s) filing the return. However, a tax return showing significant income increases the odds that a claim of hidden assets might be valid. A tax return showing little, or no, income should prompt the question, “If assets are being hidden, where did they come from?” Tax returns also provide authoritative documentation concerning sources of income.

For example, interest income is reported from the payer of the amounts to the Internal Revenue Service. This usually means that the taxpayer will report the amounts on his or her tax return. If there is interest income on the tax return and no asset disclosed that would generate interest income, the basis for an inquiry arises.

Bank Statements

The couple’s bank account usually serves as the financial framework of the marriage. The monthly bank statements serve as evidence of what went into the account and what was paid out. Bank statements are useful for their summary information in that they quickly show all income and all expenses which can be used to illustrate missing income, or to illustrate the relationship between the income the couple was generating versus what they were spending.

They are also useful in identifying inter-account transfers and automatic payments, and may describe other unusual transactions. However, while bank statements record deposits and checks written, they do not usually provide the detail necessary to analyze specific transactions. Therefore, obtaining the check registers of the couple is necessary.

Check Registers

“Check register” is an accounting term that refers to the couple’s checkbook and the manner in which the deposits and expenditures related to their account were recorded. Check registers generally come in three forms. The first is totally manual. That is, every deposit and every expenditure is recorded by hand in a register provided at the back of the check book.

The second is a duplicate system. That is, when a person writes a check a copy of it is produced. The copy has a place to keep a running balance and to record deposits. The third is electronic. As information technology becomes the norm, more and more individuals will move toward paperless transactions. For example, automatic withdrawals from checking accounts to make loan payments are paperless transactions.

Regardless of how they are recorded – with or without paper – all transactions give rise to evidence which can be pursued in discovering hidden assets.
Sometimes it is possible to obtain the actual canceled checks related to an account under investigation. This situation may arise in highly contentious divorces or when an investigation evolves from a divorce investigation into a criminal investigation.

However, banks and other financial institutions have stopped, to a considerable degree, returning canceled checks to customers. This is a cost reduction move by the institutions. While it is still possible to obtain the canceled checks, the banks usually charge a considerable fee for their retrieval. Accordingly, you and your divorce lawyer or investigator should weigh carefully the evidentiary value of the actual check in relation to its cost.

Categories: Family Law

Child Custody

 

When parents divorce, answering the question “Who gets the kids?” is often an emotional and draining one. There are different types of custody, but the court always grants custody based on the best interests of the child. There are also many issues that may arise when deciding custody, such as legitimization in the case of a child born out of wedlock and grandparent visitation. The Branch Law Firm is experienced in all matters relating to child custody, even fathers’ rights. When it comes to child custody issues, you’ll find a knowledgeable and skilled law firm.

Statesboro Child Custody Lawyer

Temporary custody is de facto custody; it refers to the parent who actually has custody of the child at the time of divorce. In order the formalize custody, a motion for Pendent Lite must be filed with the court. There is also a hearing for temporary custody. Attorney Elizabeth Branch can assist you with the process.

Sole custody refers to the parent who has the child living primarily with them, and the child only has one primary residence. Split custody is when there are two children, and each resides with one separate parent. With joint custody, both parents actually share and control the rearing of children, and the child may have one or two primary residences. For example, the child may have one residence but live with the other parent on a rotating basis. Statesboro Fathers’ Rights Lawyer

When couples cannot agree on child custody issues, mediation is an option in Georgia. A mediator is assigned to help couples identify issues, facilitate a series of discussions and reach an agreed resolution. The mediator’s role is neutral. They are not there to take sides, but to bring both sides together. The Law Branch Firm can act as your advisor during the mediation process and even review agreements before you sign them. They are there to protect your rights.

Traditionally, courts did favor the biological mother when it came to custody. However, the courts have now recognized the value of the role fathers play in child upbringing. At a Statesboro fathers’ rights lawyer, attorney Elizabeth Branch is a strong advocate of the rights of dads.

In cases where a mutual agreement cannot be reached, litigation may be the only other alternative. Attorney is both an experienced and powerful litigator. Let her skills work for you. She will gather all the documentation necessary, take depositions from witnesses and work in the best interests of the child and family.

 

Categories: Family Law