Resources For Peacemakers

Law for Blended Families

Blended families have special needs.  An attorney serving blended families should listen carefully to those needs and help clients plan pro-actively to avoid problems down the road.

Candid discussions as well as financial disclosures prior to a second marriage will help parties reach agreement ahead of time about important issues.  The expectations and agreement of the parties can then be drafted into a prenuptial agreement (also called an antenuptial agreement).  The occasion of a new marriage is also a good time to revise estate plans.   Spouses married for a second (or more) time have a need to balance commitments and obligations to children and spouses from former marriages with their new commitments to a new spouse and any children that may be part of that new relationship. logo cropped sharpened

Even when children from prior marriages are grown, emotional dynamics can remain complicated.  Equally important, however, at a certain age financing of possible old age care can become a serious concern.  Since spouses are financially responsible for one another, it is possible that remarriage could put life savings at risk for care of the new spouse, a result that can be avoided through a carefully drafted prenup.

If you are contemplating remarriage, a legal consultation would be a wise step.  To schedule an appointment, call 803-414-0185, or fill in the form below:

Peaceable Divorce

When people get married, they are like two plants that become rooted in the same pot of soil.  Their roots and stems become intertwined and woven together.  The process of divorce is a bit like taking those two plants, that have grown together, and then separating them back into two separate pots.

There are many aspects to re-establishing identity as a single person after divorce.  There is emotional divorce (moving apart emotionally), physical divorce (moving apart physically), financial divorce (moving apart financially), and legal divorce (moving apart legally).   When all the components of divorce are examined, it becomes apparent that the  legal component of divorce is really just one aspect of what it takes to be divorced.  The bulk of the transition process involves business and financial decisions, shifting of living arrangements, and rearrangement of parenting time and responsibilities.

Who will decide these business and financial, living, parenting, and other aspects of divorce?  The goal of a non-adversarial divorce process is to empower the couple themselves to decide what arrangements work best for them.

If one uses the analogy of the plants with roots, the couple themselves figure out how to disentangle the roots.  There may be painful decisions, with some pruning and cutting necessary, but overall the goal of divorce mediation is to empower the couple themselves to find the best solutions overall for their family.  When both parties are committed to principles of fairness and want to be fair to one another, mediators have many tools to help parties make a mutual, voluntary decision about what is fair.

Parents who work together are also better able to provide a cushion for their children, reducing the effects their separation has on the children.  Parents choosing non-adversarial divorce have more flexibility to work out solutions that make the transitions as seamless as possible for their children.  Non-adversarial divorce doesn’t just shield children from conflict, however.  Many parents feel that choosing a more peaceable approach to a challenging situation actually creates a better role model for their children.  Parents choose not to model negative behavior.  Instead, they demonstrate to their children that even when disagreement is irreconcilable, two adults can work through conflict respectfully and fairly, and in a way that avoids harm to their loved ones.

The difference between a mediated divorce and a divorce that uses mediation as part of a legal settlement process involves a profound difference in paradigm.  The legal system is adversarial in nature.  Additionally, filing legal papers as a first step in the process automatically  asks a judge to make all the decisions for the parties.   Once a judge has been asked to make a decision, then the entire focus is on building a “case” to present to the judge.  The parties are no longer in control of their own decisions, lawyers are needed to manage the process, and costs escalate because of the nature of the process.  Mediation in this context is reduced to a settlement conference.

Choosing a non-adversarial paradigm, in contrast, keeps parties in control of their own decisions.  If the parties need help in reaching decisions or in deciding what is fair, a professional mediator has many tools to assist with this.  After a decision is reached on all the relevant issues, the legal process is only invoked to ask a judge to review the agreement for fairness, to ensure it is in the best interest of the children, and to finalize the order of divorce.

While it is impossible to say ahead of time what will be involved in final resolution of any individual case, overall the cost of a non-adversarial process is generally a fraction the cost of an adversarial, litigated divorce.  Cost is not the main reason to choose non-adversarial divorce, however.  The true benefit is the ability to find better solutions for the challenges facing the parties, as well as the ability to preserve whatever is left of the relationship.  These are especially important benefits when children are involved.  Par the parents will need to work as a team for many years forward to ensure the best future for their offspring.

Careful planning helps secure a better future

Careful planning helps secure a better future

 

To learn more about mediated divorce, call 803-414-0185 or complete the contact form below:

Estate Planning

A good estate plan does include a Last Will and Testament, but it also includes much more.

Anyone could become disabled, at any time, as the result of a freak accident.  Every adult, no matter what their age, needs legal documents which spell out who has authority to manage the person’s affairs or make decisions if that person does become mentally disabled.  The document that spells out the powers and responsibilities of the agent is called a Power of Attorney.

Although these documents are available “online,” they are complex, technical documents.   Sometimes “penny wise” is “pound foolish,” and using cheap forms off the internet may be one of those times.  A power of attorney should not be entered into without advice of an attorney.   Additionally, by the time a person really needs to rely on their advance planning legal documents (for instance, if a person is in a coma), it is too late to do it then.  This is because if a person is mentally incapacitated, he or she lacks capacity to execute legal documents.  This means that if a mistake has been made in a form obtained online, that mistake will likely not be discovered until a time when it is too late to fix it.

What then?  If a person becomes mentally disabled without a general, durable power of attorney that has been properly executed, sometimes the only solution is to procure a court-ordered Guardianship or Conservatorship.   The requirements of due process make these difficult to obtain, expensive, and time consuming for one’s loved ones.

A second category of documents that should be offered with every estate planning package is an Advance Directive (such as a Living Will), and a Health Care Power of Attorney.  Forms for these are also available online.  It is highly advisable, however, to obtain professional assistance in addressing the meaning of the decisions in the documents and also to ensure that the documents are validly executed.   These are another example of documents that do one no good if they are not properly executed and communicated to those who need the information.katri-Kytopuu-stairs-in-woods_thumb.jpg

It is true that not everyone will become disabled.  Not everyone will need to rely on these documents.  If that’s the case, great!  But failure to have them is like playing Russian Roulette.  You never know when or where disaster may strike, and these are documents that are critical to have when it does.

A professionally guided estate plan should also address special needs, such as special needs of blended families or needs of children with disabilities (who may benefit from a special needs trust).

Good, comprehensive estate planning, guided by a professional, is truly a case where an ounce of preventive planning is worth a pound of cure.

To discuss this more, please call 803-414-0185,  or use the contact form below.  (Please note that legal services are available only in the State of South Carolina.)

Do I Need A Prenup?

Marriage is not just an emotional and physical union — it’s also a financial union. Although the discussions that go with a prenupial (or antenuptial) agreement may feel uncomfortable, it’s better to have these discussions at the beginning of a commitment than to be surprised later.  By bringing these conversations to the open and encouraging frank discussion of finances and the values they reflect, a prenup can actually help ensure a better foundation for the future your marriage.

YOU SHOULD CONSIDER HAVING A PRENUP IF YOU FALL INTO ANY OF THE FOLLOWING CATEGORIES:

  • You already have children and/or grandchildren from a previous marriage
  • You already own assets such as a home, stock or retirement funds
  • You own all or part of a business
  • You anticipate possibly receiving an inheritance
  • One of you is much wealthier than the other
  • One of you will be supporting the other through college
  • You have loved ones who need to be taken care of, such as elderly parents
  • You have or are pursuing a degree or license in a potentially lucrative profession such as medicine
  • You could see a big increase in income because your business is taking off, or that garage band you play in has just gotten a contract with a big record company.

THINGS THAT CAN BE ACCOMPLISHED WITH A PRENUP

Keep finances separate:

  • Itemize assets and define what is separate and what is marital property
  • Define how future income will be allocated, will this be joint property
  • Define how future property acquisitions will be allocated, as joint or separate
  • Protect each other from debts accrued before or during marriage
  • Provide for children from prior marriages
  • Keep an inheritance separate
  • Define each of your rights if you were to divorce

Clarify responsibilities during the marriage:

  • whether to file joint or separate income tax returns and how to allocate income and tax deductions on separate tax returns
  • who will pay the household bills — and how
  • whether to have joint bank accounts and, if so, how to manage them
  • agreements about specific purchases or projects, such as buying a house together or starting up a business
  • how to handle credit card charges — for instance, whether you will use different cards for different types of purchases, what kinds of records you will keep, and how you will make payments
  • agreements to set aside money for savings
  • agreements for putting each other through college or professional school
  • whether you will provide for a surviving spouse — for example, in your estate plan or with life insurance coverage, and
  • how to settle any future disagreements — for example, you might agree to hire either a mediator or a private arbitrator.

WHAT ELSE YOU NEED

Complete Information:  The prenup negotiation process includes full disclosure of all financial assets and liabilities

Estate Plan: It is important for the contents of the prenuptial agreement to dovetail with your estate plan.  Marriage or remarriage is a time to review not only estate planning documents, but also investment accounts and titles to property to ensure that these are titled in a way that accurately reflects your intentions with regard to  ownership and succession planning.

Attorney:  In South Carolina, a prenuptial contract can alter significant legal rights that accrue as the result of marriage.  For this reason, the assistance of an attorney is essential.

If you would like to learn more, feel free to contact me for a consultation:

Mediated Divorce vs. Divorce Mediation

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“Equus grevyi (aka)” by André Karwath aka Aka – Own work. Licensed under Creative Commons Attribution-Share Alike 2.5 via Wikimedia CoD

Mediated divorce is not the same thing as divorce mediation!  This article explains why.

The term “mediated divorce” describes a process in which a skilled, neutral mediator helps the parties make all the decisions they need to make and reach agreement about the terms of their divorce BEFORE DIVORCE PAPERS ARE EVER FILED IN COURT.   The term “divorce mediation,” as used by attorneys and the general public, in contrast, generally refers to a settlement conference held as part of a lawsuit, AFTER DIVORCE PAPERS HAVE BEEN FILED IN COURT AND JUST BEFORE TRIAL.  The differences in paradigm and process result in two creatures that are as different as a horse and a zebra.

Just as a zebra and a horse both have four legs and run, mediated divorce and divorce mediation both (a) involve use of a neutral mediator, and (b) can be used to arrive at settlement terms of your divorce agreement.  There, the similarity ends.

To understand why the rest of the processes are so different, one must first understand the basic issues and process involved in divorce.

Divorce has many legal aspects, but there are also many aspects of divorce that are more practical than legal. Many aspects of divorce involve changes that occur gradually over time.   Some of these aspects are legal, but most of them are not.  Most of the process of divorce includes separating and detaching emotionally, financially, and establishing two separate, independent lives once again.

Thus, the process of divorce involves separating and re-establishing boundaries, reshuffling of parenting plans and schedules, rearrangements of finances, re-titling of property.  If one were to draw a list of steps, it might include: Increase in emotional and physical separation or distance  -> A decision to separate ->

Following through on this decision by:

(a)  physically moving apart,

(b) separating emotionally,

(c) separating finances, figuring out how to support two separate households utilizing income that used to support just one,

(d) reaching a fair property settlement,

(e) reaching some sort of solution with regard to how to parent children  ->  and then …

(f) creating a new legal status that is “divorced” rather than “married.”

As you can see, Items (a), (b), (c), (d), and (e) listed here are not really “legal” issues per se.  They are practical issues with regard to deciding “what will the new arrangements be?”  The difference between “mediated divorce” and “divorce mediation” has to do with how these middle items are decided.  Will you decide, or will lawyers direct a process that disempowers you and places the lawyers and judge in charge of those arrangements and decisions?

This is why it is so important for people to understand the difference in paradigm.   In a true, mediated divorce, the Mediator will direct the process, but it is designed to keep the parties in control of their own decisions, applying their own values, to reach their settlement agreement.  Once this agreement is reached, then the last step is the legal part, to ask a judge to review and approve the divorce settlement for fairness and to grant the divorce on the appropriate legal grounds.  Now that the difference in paradigm has been exposed, what is the difference in process?

If a person goes to see an attorney and tells that attorney they want a divorce, the attorney likely will assume that the parties want a judge to decide most of these issues for them, particularly (c) through (e), and likely including the terms of (a).  The attorney most likely will, as a first step, file legal papers asking the court to decide these issues.  This legal paper, called a Complaint, creates a lawsuit which is set up as Party A versus Party B.  This is what is called a “litigated divorce.”  When someone serves or says they have been served with papers for divorce, the “papers” they are referring to is the Complaint and its accompanying paperwork.   This initial filing of a lawsuit sets the parties up as adversaries in a battle that is played out, ultimately, in a courtroom and which asks the judge to make the decision as to how all the issues will be decided.

A mediated divorce follows a different process entirely.

Mediated Divorce:  In a mediated divorce, parties hire a neutral mediator who guides them through discussions and factual investigations designed to help them understand the issues, know their options, and reach agreement on every single one of these issues voluntarily.  The mediator seeks to empower the parties to make their own, best decisions and reach authentic agreement, so that there is no need to ask a judge to decide their personal affairs for them.  The emphasis is on joint problem solving and on finding solutions that both parties feel are fair and sustainable for both parties and for the children.  After agreement is reached, a contract is drawn up which lays out the terms that have been agreed upon.   Only after those terms are agreed upon do the parties file papers and go to court to ask the judge to review their agreement and finalize their divorce.  The resulting court action is adversarial in name only.  The court system requires one person to file papers and be the Plaintiff, but after the terms of a divorce have been fully mediated and both parties are in agreement as to the terms of their settlement, there is nothing (or very little) that remains in contention.

When the parties use a mediator to arrive at the terms of their separation, this is called a “mediated divorce” (in contrast to a litigated divorce).  When the parties ask the judge to decide (using “litigation”), then it is called a “litigated divorce.”

Some may ask, “Why is a mediator needed?”  The answer is that a mediator is needed because most people don’t understand all the  issues that need to be decided.  Additionally, most people need some help from a neutral person to act like a referee and help facilitate communication.  (After all, if the parties got along perfectly they would probably not need the divorce.)

Litigated Divorce:  As soon as legal papers have been filed, the parties have already been placed into the adversarial mode of “A versus B.”   In approximately 95% of litigated cases, the parties reach agreement prior to going to trial.   Because the case is being prepared for trial, the lawyers (who are experts in the trial process) must manage the gathering and presentation of reliable, probative evidence to present to the judge.  The lawyers must also anticipate what evidence should be excluded from the trial.  After the lawyers prepare their case for trial, they use a creature called “divorce mediation” to negotiate a settlement.   A more accurate description would be to call this a mediated settlement conference, which is the term most mediators use for it.   A mediated settlement conference uses a neutral mediator to facilitate negotiations between the two sides of the lawsuit, both of whom are represented by attorneys in the negotiations.  The emphasis is on “settlement of a lawsuit,” rather than a process of exploration of options and working together to find a sustainable resolution.  The lawyers manage the mediation, with the mediator going back and forth with settlement offers. Much depends upon the negotiation style of the attorneys, as well as the fact that with many more professionals in the room the cost per hour is much higher.  Divorce mediations in the context of litigated divorce, therefore, tend to be high intensity, high stakes negotiation sessions rather than brainstorming and problem solving sessions.  With their professional emphasis on preparation for trial and being focused on the impending hearing before a judge, attorneys naturally also place emphasis on “what would a judge do,” rather than allowing their clients to engage in a co-operative quest for mutually satisfactory solutions.  After all, the attorneys are focused on “winning,” and they are eager not to let their client lose any potential trial advantage.  Additionally, because judges only have a limited range of options available to them, the focus tends to be on those options rather than on the many other, creative types of arrangements parties  might choose if they were to think “outside the box.”   For obvious reasons, the attorneys prefer to inject significant management into what their clients say and do in mediation, in an effort to avoid prejudice in the event of an additional trial.  These differences in process and in focus change the entire flavor of the mediation, making it more like a zebra and less like a horse.  You may be able to ride a zebra, but it is not the same as a horse.

There will be some who take issue with this characterization.  Certainly, just as there are variations between types of horses and types of zebras, it is not completely fair to say that this brief description is true for every case.  Yet, for the most part, in a truly “mediated divorce,” the parties are not pitted “against” one another during their divorce negotiations.  It is fair to say that in most cases that are already in court the parties clearly are already adversarial.  The difference affects almost every aspect of the case.

In an earlier blog post, I described the mediator in a mediated divorce case as being like  New York City taxi cab driver, helping to guide the parties through a confusing landscape to get them from point A (married) to point B (divorce) with as little collateral damage as possible.  In a case guided by a mediator before the parties have filed divorce papers, the mediator will seek to empower the parties to cooperate, will encourage them to share information, and will help them act as a team to find solutions that feel fair and w hich will work for everyone in the family.  Thus, even though the parties are divorcing, use of a mediator can act as a bridge to help the parties formulate the best possible solutions available for their family in the changed circumstances.  This does not mean that the question “what would a court order” is irrelevant.  What a court would order is a good measure of what is objectively “fair.”  However, there are other ways of measuring fairness, too.  In many cases what a court would do is a very appropriate measure of fairness.  However, sometimes the parties themselves also decide that there are reasons to justify doing things differently.

There also are cases where mediation is not appropriate.  Mediation is not a way for one party to get their way at the expense of the other.  Both parties must demonstrate a commitment to principles of fairness.  If one party doesn’t care about fairness, then the other party will need the protection of the Court to enforce those principles.

The different role of lawyers in mediated divorce also does not mean lawyers are not needed or are not involved.  In a mediated divorce, parties are encouraged to consult with their attorney for advice and feedback.   After all, lawyers are experts in what the law is, and what the law says is relevant.  The difference is that, in a mediated divorce process, lawyers are consultants rather than stage managers or directors who manage and control a case. Additionally, after the parties have arrived at a settlement they both feel is fair, there will still be a need for that settlement to be reviewed for fairness and completeness by attorneys.  The settlement will need to be drafted into the form of a written contract.  And then, after this contract is executed, attorneys will be needed to manage the legal process that is necessary to get the settlement reviewed and approved by the court and to have the divorce finalized.

Some readers might ask, “why use a mediator when I’ll need to use an attorney anyway?”  The answer, hopefully, is apparent at this time.  The role of the mediator is different from the role of attorney.  The attorney focuses on the legal process.   The mediator’s role is not legal, but rather to help the parties to reach a full and fair agreement, hopefully prior to the start of the legal process.  The cost-effective side of divorce mediation is that the mediator is focused on reducing conflict.  The adversarial process, in contrast, sometimes can increase it.

If you’re interested in scheduling an initial consultation to learn more, fill out the form below.  The charge for an initial consultation is $200.

Adoption in South Carolina

God makes families in many ways, and one of those ways is through adoption.  Helping families cement their ties through the legal bond of adoption is one of the most joyous things an attorney can be privileged to do.

Legally, even a simple adoption requires a relatively complex procedure.  Every “I” must be dotted and every “T” crossed, “just so.”  This is because the right of a parent to be a parent to their child is a basic, fundamental liberty which can only be removed through the most stringent of legal processes.  In even an uncontested case in which the known biological parent is voluntarily relinquishing parental rights, an independent attorney or certified adoptions social worker must personally meet with the individual and certify that they understand the specific rights they are giving up.   Additionally, a neutral guardian ad litem must conduct and independent investigation and make a recommendation that the proposed adoption is, indeed, in the best interest of the child.  The paperwork requirements are detailed and specific.

While I am in favor of empowering my clients to retain as much control as possible over their own lives, adoption is one area in which I believe it is important to have the assistance of legal counsel at every step.   The consequences of a “botched” adoption are simply too severe to take a chance on anything being done improperly.

I realize that adoption is expensive for many families, especially since more than one professional must be involved.   I am committed to providing cost effective legal services that middle class families can afford.  The way I seek to save money for my clients is  by working as efficiently as possible and by using appropriate professionals who are also committed to the same principles of working cost-effectively and helping families achieve their personal and legal objectives.   Additionally, I offer payment plans and accept credit card payments.

To learn more about my services for adoption, please call 803-414-0185 or fill in the contact form.

 

What Is Divorce Mediation And Why Should I Mediate My Divorce?

My goal as a divorce professional is to help people make good, informed choices as they navigate the many important decisions they must make during this life transition. An immediate, and important, decision is what kind of process to choose for a divorce.  Will the two of you decide to reach a settlement outside of court and pursue an option such as mediation or collaborative divorce, or will you ask a court to make all of these important decisions for you?  There are many reasons that it’s better to do it yourselves, if you can.

  • Mediation gives you an opportunity to disentangle the the roots rather than asking a court just to cut them away to create two separate plants.
  • The process is designed to keep you in control of your own affairs.
  • Mediation allows for more flexible arrangements where children are concerned.

What If I Choose Divorce Mediation?    (For more in this article, please click here) Read More

TIPS FOR DEALING WITH FAMILY CONFLICT DURING THE HOLIDAYS

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If you are worried about conflict that may occur during family gatherings such as family reunions, weddings, and holiday dinners, this post may provide some helpful tips on how to reduce or avoid conflict, and how to deal with it when it happens

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What is the Best Divorce Process for You?

If you are looking for a caring and competent divorce, family, and elder mediator in South Carolina, you have come to a good place.   My comfortable office in Columbia, SC, is a central and neutral location for clients who come from all over the state — with or without attorneys — for help in reaching divorce separation agreements, parenting and custody plans, elder care plans, and other family issues outside of court.  With help of one of our highly qualified, neutral mediators, divorcing couples and families reach voluntary, fair, and amicable settlement agreements.  The goal of mediation is to help you reach agreement and to make sure it is done in a fair way that does not leave out or overlook any issues or future challenges.  After a complete settlement agreement is reached covering all issues in a manner both parties believe is fair, an attorney is usually hired to manage the very simple process of having it made into an enforceable court order.

But mediation is a relatively new way of settling divorce and family conflict issues.  What if one spouse needs more protection?  How will you know if an agreement is fair?  How can you know if your case is appropriate to settle outside of court, at all?   Do you need a divorce attorney to fight for you?  These are important concerns.  My very first step as a professional divorce guide is to help you gain the knowledge you need to answer all those questions.  You cannot know what is needed in your individual situation until you have learned about the benefits and drawbacks of the four main approaches to divorce:  litigated divorce, collaborative divorce, mediated divorce, and uncontested divorce.  Therefore, my first role will be to assist you in learning about your divorce options and then to help you decide what options might work best in your circumstances. Read More

What Is A Mediator?

The purpose of this post is to answer the question, “What is a mediator?”  A mediator is a trusted, neutral person who facilitates a process designed to empower parties to recognize find their own, satisfactory solutions to intractable conflict. Each word in the sentence above has important meaning.

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