Posted by Mark Jakubik on January 31, 2007
My friend and fellow blogger Grant Griffiths of the Kansas Family and Divorce Lawyer blog recently has the follwing on the use of settlements and mediation in family practice, and the appeal of collaborative law, posted on the resources section of his blog:
A fellow family law blogging friend of mine, James Gross of the Maryland Divorce Legal Crier has a great post today. One that is one sentence long and contains some great content. Here it is:
“A good settlement is where each side gives up 60%.”
James is exactly right. But even more important, the parties in a divorce case should strive for some form of settlement. I have yet to see any client of mine, even when we win everything we want, happy after a divorce trial. Settle the darn thing. Not only is it easier on the husband and wife. When there are children involved, they almost always come out better from a settlement. A divorce trial does not do either side any good. In fact, I usually see both sides coming out damaged in some way.
This is why I am such a firm believer in mediation and now collaborative law. Both, especially collaborative law, strive to come to some form of an agreement. Best of all, you the parties are deciding your case and not the court.
If you don’t or won’t come to an agreement, the judge will for you. And chances are, neither side is going to be happy with the order of the court. Work with your lawyer and your ex-spouse and make every possible effort to settle your case. And remember, “a good settlement is where each side gives up 60%.”
I agree with Grant and James completely.
Source for post: Kansas Family and Divorce Lawyer.
Posted in Collaborative divorce, Divorce | No Comments »
Posted by Mark Jakubik on January 30, 2007
One of the first questions I expect people ask (I know it was my first) is what is the difference between a collaborative divorce and a normal divorce? Isn’t it just really a fancy term for everyone trying to play nice? The International Academy of Collaborative Professionals describes the difference as follows:
In conventional divorce, one spouse sues the other for divorce and sets in motion a series of legal steps. These eventually result in a settlement achieved with the involvement of the court. Unfortunately, spouses going through a conventional divorce can come to view each other as adversaries, and their divorce as a battleground. The ensuing conflicts can take an immense toll on the emotions of all the participants, especially the children.
Collaborative Practice, by definition, is a non-adversarial approach to divorce. The spouses—and their lawyers—pledge in writing not to go to court. They negotiate in good faith, and achieve a mutually-agreed upon settlement outside of court. The cooperative nature of Collaborative Practice can greatly ease the emotional strain caused by the breakup of a relationship, and protect the well-being of children.
Obviously its a little more datiled than that. I’ll be posting more about the collaborative process shortly.
Posted in Collaborative divorce, Divorce | 1 Comment »
Posted by Mark Jakubik on January 30, 2007
Collaborative practice is something that I have become very, very interested in, and that I plan to try and integrate into my practice. I largely agree with those who believe that colalborative practice could revolutionize the practice of family law, and that it could be applied, to positive effect, to many more practice areas. If you are not familiar with collaborative practice, you might wonder exactly what people mean when they use that term. The International Academy of Collaborative Professionals offers the following discussion:
Collaborative Practice is a new way for a divorcing couple to work as a team with trained professionals to resolve disputes respectfully, without going to court. The term encompasses all of the models that have been developed since Minnesota lawyer Stu Webb created the Collaborative Law model in the 1980s. This model is at the heart of all of Collaborative Practice. Each client has the support, protection and guidance of his or her own lawyer. The lawyers and the clients together comprise the Collaborative Law component of Collaborative Practice.
While Collaborative lawyers are always a part of Collaboration, some models provide child specialists, financial specialists and divorce coaches as part of the clients’ divorce team. In these models the clients have the option of starting their divorce with the professional with whom they feel most comfortable. Then the clients choose the other professionals they need. Therefore, the clients benefit throughout collaboration from the assistance and support of all of their chosen professionals.
Although Collaborative Practice comes in several models, it is distinguished from traditional litigation by its inviolable core elements. These elements are set out in a contractual commitment among the clients and their chosen collaborative professionals to:
- negotiate a mutually acceptable settlement without using court to decide any issues for the clients
- withdrawal of the professionals if either client goes to court
- engage in open communication and information sharing, and
- create shared solutions that take into account the highest priorities of both clients
There is a lot more good stuff on the IACP website. I will have much more to say about collaborative practice in the days and weeks to come.
Source for Post: The International Academy of Collaborative Professionals website, where this article is posted.
Posted in Collaborative divorce, Divorce | 1 Comment »
Posted by Mark Jakubik on January 29, 2007
This was submitted as a comment to my earlier post on the California spanking legislation. I thought that it was sufficiently thought provoking to put up as a post. I have removed the identifying information. You can read my response to the comment below the fold:
I feel strongly that as a society we should use reasonable means to guide parents towards using parenting techniques that have been shown to have better outcomes for child adjustment than corporal punishment. However, the severity of punishment (up to one year in jail) for PARENTS hardly fits the crime, particularly for the majority of spankers, who are simply using the discipline techniques with which they are familiar. Making spanking a misdemeanor seems quite harsh. As a psychologist I don’t know what other alternatives there might be; could requiring attendance at a parenting class for a first offence be instituted without making it a misdemeanor? I do think legislative action would provide a push for parents to learn more positive and healthy ways to guide children.
There is also concern that this punishment might fall more heavily on minority parents. And, there is some intriguing research that shows that the long-term impact of spanking in African American families is not the same as in earlier studies that included mainly caucasian families. (The results are more mixed, but not decidedly negative.) I do think minority families could benefit from learning more positive discipline methods, but we do have to be culturally sensitive.
Read the rest of this entry »
Posted in California spanking legislation, parenting | 3 Comments »
Posted by Mark Jakubik on January 27, 2007
The Winter 2007 issue of Family Advocate (not yet available online), a publication of the Family Law Section of the American Bar Association is devoted to the subject of electronic discovery. The issue contains a wealth of information that ought to be of interest to ALL family law lawyers, as well as any lawyer that has any kind of litigation practice. In addition to an article discussing the recent amendments to the Federal Rules of Civil Procedure relating to electronic discovery, the issue contains sample documents requests, information preservation letters, discovery related motions and deposition checklists. I simply cannot recommend this issue of the magazine highly enough. If you are a member of the Family Law Section, save this issue. You will consult it frequently. If you are not a member of the section but practice family law, or any are at all involved in a litigation practice, get a copy (information available here).
Posted in Discovery, Law practice | No Comments »
Posted by Mark Jakubik on January 26, 2007
Heather Mahar of the Harvard Law School recently concluded a study in which she sought to assess whether the common perception that prenuptial agreements increase the likelihood that a marriage will end in divorce, and came to the conclusion that such agreements, if properly drafted and entered into for the right reasons, can actually increase the likehihood that the marriage will be successful. You can read more about the study here. The press release announcing the resutls of the study states that:
Mahar argues that the division of assets is “the least compelling reason for average American couples to consider prenuptial agreements, since most couples do not enter marriages with significant assets.” However, she finds that “for couples who choose a traditional partnership, with one spouse exiting the workforce to raise children, agreeing in advance about how to divide assets earned during a marriage or potential future earnings can protect the stay-at-home spouse against divorce laws, which have generally eliminated long-term alimony.”
The process of creating a prenup acts as form of premarital counseling, making couples talk about what kind of marriage they want, and what legal ramifications there will be if one spouse veers off course.
In the study Mahar advocates mandatory prenuptial agreements. That is perhaps a radical prescription, but it is always refreshing to see the conventional wisdom aggressively challenged.
Source for post: Emediawire.com.Hat tip to Jeffrey Lalloway of the California Divorce and Family Law Blog for this post on the study.
Posted in Divorce, Prenuptial Agreements | No Comments »
Posted by Mark Jakubik on January 23, 2007
Does anyone know if this great ABC series is available anywhere on DVD? It was, I think, one of the better lawyer shows that have aired over the years, was a pretty good, and fairly realistic portrayal of what practicing family law is like.
Posted in TV and Movies | No Comments »
Posted by Mark Jakubik on January 22, 2007
As has been widely reported (as here in the New York Times) a California state legislator has announced her intention to introduce legislation to make it unlawful to spank a child who is under 3 years old. I do not necessarily want to open a debate on the relative merits and demerits of spanking - I do not spank my children (but will admit to being sorely tempted sometimes), but do not jduge negatively thos that do. I do think, however, that this legislation would represent another deeply troubling (and quite likely unconstitutional) incursion on the right of mothers and fathers to raise and discipline their children as they see fit. I am not advocating abuse by any means, but to make spanking illegal seems to me to be a bit too much nanny statism. I’d be interested to hear what you all think.
Posted in California spanking legislation, parenting | 8 Comments »
Posted by Mark Jakubik on January 22, 2007
Grant Griffiths posted the following helpful information at his Kansas Family and Divorce Lawyer Blog concerning the rules that apply when divorced or separated parents want to claim children as dependents on their federal income tax returns:
The IRS makes the assumption that the custodial parent is entitled to the dependency deduction — period. The only exception is when the custodial parent releases the claim by signing Form 8332, Release of Claim to Exemption for Child of Divorced or Separated Parents, or by signing a similar statement.
If the IRS-provided form is not used, the similar statement must contain the same information — the name of the child(ren), the tax year to which it applies, and the name and social security number of the parent releasing the claim.
The IRS will not accept pages of the divorce decree that state that the noncustodial parent is entitled to the dependency exemption as satisfaction of the waiver requirement.
In the event the custodial parent refuses to sign the waiver and claims the children, the noncustodial parent cannot claim the same children. If both parents claim the same children, the IRS will promptly send a notice stating there has been an error.
Each parent’s refund will be adjusted to reflect the denial of the dependency exemptions until the matter is settled. If the custodial parent still refuses to release the claim to the other, the only recourse is to go back to the judge that issued the original divorce decree and have the ruling enforced.
Until that is done, the IRS will award the dependency exemptions to the custodial parent provided that parent can prove the children lived in his or her home for more than one-half the year.
Thanks to Grant for this post at the Kansas Family and Divorce Lawyer.
Source: Postcrescent.com
Posted in Finances, Taxes | No Comments »
Posted by Mark Jakubik on January 21, 2007
The Family Law Taxation Blog a few days ago published this post about a recent United States Tax Court decision concerning the ability of a non-custodial parent to take a tax deduction for a dependent child who was not living with him. The parents, who were not married and so were not divorced, had no agreement concerning who was entitled to claim the dependent child on their tax return. The tax court disallowed the non-custodial father’s claimed deduction because he had not filed with his return IRS form 8832 or other similar document advising that no other person wqas claiming the child as a dependent (in fact, the child’s mother DID claim the child as a dependent). There are mutliple morals to this story. First, you absolutely must address this tax issue, and must document your agreement with your spouse or non-spousal parenting partner. Second, you MUST be sure to file all the necessary forms and information with the IRS. Tax practice is complicated and getting more difficult. If you have any questions, doubts or concerns, ask your lawyer, accountant, or other tax adviser. Call the IRS, but ask someone if you are not sure.
Source for post: Family Law Taxation, which published this post. Thanks also to Jeffrey Lalloway of the California Divorce and Family Law blog for this post on the subject.
Posted in Finances, Taxes | 1 Comment »
