The Kansas City Star reported yesterday that the Kansas Supreme Court has ruled against a sperm donor who had challenged that state’s law prohibiting sperm donors from exercising parental rights in the absence of a written agreement between the donor and the birth mother. This case, about which I have posted previously, has been widely watched by scholars and family law practitioners across the country, and is likely to find application beyond Kansas. It is not clear, however, whether the case is likely to have even persuasive value here in Pennsylvania. As I reported previously, the Pennsylvania Superior Court has held that a sperm donor who holds himself out as a parent of the child by, for example, being present at the child’s birth and taking an active role in the child’s life, is responsible for child support. It is not too far fetched to imagine that, on this basis, a Pennsylvania court might find that such a donor had legally cognizable parental rights. would it be much of a stretch to conclude that a donor who was willing to go to court to seek parental rights was in fact holding himself out as a parent? Needless to say, this case answers some questions, and raises many others. Once I am able to obtain a copy of the Kansas Supreme Court’s opinion I will post it here.
Archive for October, 2007
Kansas Supreme Court Rules Against Sperm Donor in Parental Rights Case
Posted by Mark Jakubik on October 27, 2007
Posted in Father's rights, Reproductive Technology, Visitation, custody | Comments Off
Social Networking Sites Are A treasure Trove Of Information
Posted by Mark Jakubik on October 17, 2007
There is a very interesting article in this week’s National Law Journal, posted below, that discusses the increasing use that many lawyers are making of social networking sites such as MySpace and Facebook as sources of information about their clients and adversaries. The takeaway is, be very, very careful about what you post online, and what you let others post to your site. If you think you might be embarrassed or have a difficult time explaining it in court, don’t let it see the light of day. Read the NLJ article in its entirety below the fold: Read the rest of this entry »
Posted in Discovery | 1 Comment »
5 Common Finanical Mistakes in Divorce
Posted by Mark Jakubik on October 15, 2007
1. Trying to keep the house no matter the costs.‘ Many couples scrambling to obtain a divorce settlement wish to keep the house at any cost. However, financial experts say that more attention should be given to who can afford to maintain the property, pay the mortgage, and manage the taxes. While it is possible to ask for spousal support to help make the mortgage payments, unexpected maintenance costs may pop up, and make home ownership more of a liability than a luxury.2. Failing to get a clean financial break from your former spouse.‘ Clean separation of assets and debts is another difficult task, but one that Howard Dvorkin, the founder of Consolidated Credit Counseling Services says is absolutely necessary, or the consequences can be devastating. Although the task may seem insurmountable, ‘the alternative is much worse,’ says Dvorkin. ‘Having a spouse drive up your debt when you’re not married anymore’ can seriously affect one’s credit score.
3. Depending on your former spouse to comply with financial arrangements. This is also a huge mistake, according to the USA Today article. Although both parties in a divorce are beholden to a court-ordered divorce agreement, creditors do not fall under that arrangement. If your ex spouse is supposed to pay the mortgage, but doesn’t, ‘the lender is going to sue both of you,’ remarks Melissa Avery, an Indianapolis family law attorney. This holds true in Alabama divorces as well; if your ex fails to pay the mortgage, you may be hurt when applying for future loans.
4. Not reviewing your estate plan after a divorce. Wills and trusts can also be seriously impacted by divorce proceedings. If divorced spouses wait unnecessarily long to change a beneficiary on a will, for example, the money may go to the wrong person—your new spouse may get nothing, while your ex spouse inherits the amount provided for in your will.
5. Not understanding the different tax treatment of alimony vs. child support.‘ Finally, never forget which amount of money in your divorce settlement is alimony, and which amount is child support. Whereas child support payments are not taxable to the recipient, alimony payments are. Furthermore, there are limits to how long a person can receive such payments—child support payments can no longer be received once the child turns 18 or is done with college, while spousal support generally ends once the recipient remarries.
Credit goes to the California Family Law Blog for first posting about this article.
(Via Alabama Family Law Blog.)
Divorce adds another wrinkle to retirement planning
Posted by Mark Jakubik on October 15, 2007
Some older clients seek guidance as they end their marriages
As if baby boomer retirement and estate planning weren’t enough,
financial advisers are now grappling with another issue brought to the
fore by boomers: late-in-life divorce. Advisers are reporting that more of their clients who are approaching retirement age are coming to them for financial guidance as they end their marriages.‘We’re seeing people married for 30 years who are now getting divorced,’ said Tom Norton, a certified public accountant and certified divorce financial analyst at Thomas Norton & Co. LLC of St. Louis. Longer life expectancies may mean that unhappy spouses are willing to change their situation if they
are discontent with their marriages, he added.The leading edge of baby boomers — those born between 1946 and 1955 — has the highest divorce rate among Americans. About 38% of men and 41% of women born in that decade were divorced by 2004, according to the U.S. Census Bureau.
In addition to the emotional turmoil involved, divorce later in life is
complicated by the need to re-examine and shift retirement and estate
plans, advisers say.Now approaching retirement, boomers have accumulated hefty balances in their qualified savings plans and other accounts, all of which typically are split between the divorcing spouses. But advisers have recognized that divvying up cash and other financial assets often is one of the easier parts of divorce planning, as angst ridden as it may be.
The most difficult job often is dissuading a client from living a flashy and expensive lifestyle as a newly single retiree, some advisers say.
‘This generation as a whole is looking to retire in better style,’ said Howard Sontag, founder and principal of Sontag Advisory LLC in New York and Westport, Conn. ‘It’s hard for someone in the midst of an un-pleasant experience to get intelligent about their money.’
Mr. Sontag spoke of a client who acknowledged that she could no longer afford the large apartment she had had prior to a divorce but insisted on keeping it anyway. In such cases, clients require advisers who can provide
emotional and financial guidance.‘When you find people who have been hurt and are still holding that grudge, they can make a lot of bad financial decisions,’ said Drew Tignanelli, president of The Financial Consulate, an advisory firm in Lutherville, Md.
‘I’m not saying I’m a psychologist, but you should encourage them to seek help if they need it,’ he added, observing that some troubled clients have turned their backs on their finances and ‘live like paupers.’
Clients should also be made aware that Social Security may not provide the
windfall they could be anticipating. Those 62 and older are entitled to
collect retirement benefits on an ex-spouse’s Social Security record if
the marriage lasted at least 10 years and if the ex is entitled to
benefits, in which case the individual may receive the equivalent of
half of what the ex-spouse receives.In case of remarriage, those 62 and over can choose to get benefits based on their old spouse’s or their new spouse’s Social Security record. Those under 62 are entitled to benefits based only on their new spouse’s Social Security record (though if they get divorced a second time, they are entitled to
benefits based on either spouse’s record).Aside from helping clients create a budget, understand cash flow and seek retirement work opportunities, advisers also must untangle estate plans. This calls for a team of lawyers and accountants, especially when divorced individuals remarry.
‘Estate planning is most complicated when there’s a large disparity in assets, and the new husband and wife want to keep assets separate,’ Mr. Tignanelli said. The situation becomes messier when stepchildren become involved.
The law regarding a ‘per stirpes’ distribution, or the equal division of assets among descendants in an estate plan, can vary from one state to another and
may not include stepchildren, Mr. Tignanelli added.‘When clients divorce and then die, you have to make sure that the stepparents will leave something to the children — that’s the battlefield of estate administrations,’ he said.
Read more at Investment News.
Posted in Divorce, Finances | 1 Comment »
More on Alternative Billing
Posted by Mark Jakubik on October 5, 2007
A little while ago I posted here regarding my belief that alternatives to hourly billing were best in many, if not most, cases, including family law cases. Ben Stevens at the South Carolina Family Law Blog has taken up the issue. Here is Ben’s latest post on this subject (and, for what it is worth, I agree completely with Ben, and disagree with his critics):
My two articles published last week (here and here) on the subject of using fixed fees in family law cases have created a bit of a buzz. Some bloggers, like Grant Griffiths of the Kansas Family Law Blog, agree with me. Mr. Griffiths writes that he has been using fixed fees in his family court practice for over three years, and he agrees with me that this method benefits both his clients and himself.
However, others, such as Daniel Clement of the New York Divorce Report disagree and still advocate the “hourly” billing model for his family law cases. Mr. Clements questions whether fixed fees are appropriate in anything other than “simple” cases, i.e. those that are limited in scope, and he believes fixed fees to be inappropriate in more involved cases. He focuses his concern on the possibility that parties in family law cases might take “irrational and economically untenable positions fueled by emotions.”
I probably had the same type of concern before I began handling cases in this manner. However, after using this method for a few years, I can say from experience that it is unfounded. Among other things, I use the following two methods to help prevent this from being a problem in my practice:
- I am very, very selective in choosing which clients I agree to represent. I estimate that I reject approximately one-half of the potential cases that I could accept. I only agree to represent those clients that meet the following criteria: (a) the client’s goals in the case are reasonable; (b) the client is willing to help my office work on his/her case; and (c) the client is someone that I truly want to help. There are other more subtle criteria that I subconsciously apply, and I will admit that a lot of it is done by “gut feeling”. However, after doing this for so long and handling so many cases, my gut feeling is right the vast majority of the time.
- In most family law matters, I usually break the case down into different phases, at which portions of the fixed fee will be due and payable. This can be done in different manners, such as by time or by status of the case, but the point is that if a case gets resolved during any particular phase, there are no additional attorney’s fees due. This scenario gives the client incentive to help resolve the case sooner rather than later if a reasonable resolution is possible, but at the same time, the client is protected and knows his total cost if it is not. Having all of this information available to the client up front helps him/her better assess any settlement offers and the case in general as it progresses.
Mr. Clement’s post made me wonder about his thoughts on these questions:
- How does he handle “unreasonable” clients that he is representing on an “hourly” basis? I believe that the problem he references is more with the clients themselves than with the manner of charging for the attorney’s time. Back when I did charge by the hour for my time, I would typically withdraw from the representation if my client was acting unreasonably. I still have that same option available to me now while using a fixed fee, but it is very rare that I have to exercise that option because of my stringent client selection criteria as discussed above. Either way, I do not want to represent unreasonable clients, period.
- Does he agree with the harsh opinion expressed by Robert Hirshon, former president of the American Bar Association, that “[t]he billable hour is fundamentally about quantity over quality, repetition over creativity”? I believe that clients don’t care how long it takes you to produce those results – they only care about the results themselves. I believe that the hourly rate can encourage (or at least reward) inefficiency on the attorney’s part, because the longer it takes to do something, the greater the fee charged to the client. Also, if I were the client, I know that I would feel uncomfortable in effect writing the “hourly basis” lawyer a blank check and hoping that he/she keeps the fees as low as possible.
I challenge Mr. Clement to handle just one case on a fixed fee basis and to then post his thoughts about doing so. I am confident that should he do so, he will quickly see why I am such an advocate of this method. I handled cases on an hourly basis for over a decade, and I can say without hesitation that the fixed fee basis is vastly superior for both attorneys and their clients. I invite others to let me know their opinions on this topic by posting their comments.
Source: South Carolina Family Law Blog
Posted in General Family Law, Law practice, Legal Fees, Uncategorized | No Comments »
