My experience has been you can win an overpayment if you can generally show that is through no fault your client.
Prior to going off to battle, opposing sides may hold a parley to avoid the inevitable cost of war. Parties to a divorce may be wise to do the same. If spouses can agree to the terms of divorce prior to filing, or have an uncontested divorce, they can avoid the time and expense of a protracted legal proceeding.
Uncontested divorces are not right for everyone. Some of the most unfair, unjust, and inequitable divorce settlements are uncontested divorces. Below are some factors to consider in determining whether an uncontested divorce is right for you, and protect your interest should you decide to parley.
- Divisive Issues: The most divisive issues in a divorce are child custody and support. If spouses are not going to be able to agree on those issues, then any negotiation is pointless and potentially harmful to your case.
- Motivation: Both sides need to be properly motivated. If a spouse doesn’t want to be divorced, then any sort of agreement on a divorce is impossible. A disparity in motivation between spouses often leads to inequitable results. A spouse who is more highly motivated to divorce than their counterpart is should be wary.
- Power: A victim of abuse cannot be expected to bargain with their abuser; however, the balance of power is often tilted in much more commonplace ways. For instance, a spouse who is depressed or is feeling guilty is at a far greater risk to agree to an unfair settlement.
- Knowledge: You need to have a good knowledge of what your spouse makes and the assets s/he has. Without that knowledge, it is impossible to know if any deal you work out is fair.
- Expertise: Finally, and most importantly, you need expertise. The only way to gain the appropriate expertise is to talk to an attorney experienced in family law matters. By talking with an attorney you can learn what your rights are, determine the parameters of acceptable settlement, and discover some issues that you haven’t even considered. Additionally, an attorney can prepare some settlement documents in advance that you can simply present to your spouse, which will spare you the awkward negotiation process.
An uncontested divorce is the most cost-effective and quickest way to resolve a divorce, but before you hold that parley, make sure you are prepared.
Joe Kuhl (email@example.com) is a partner with Shea, Kohl and Kuhl L.C. He has been with the firm since 2004.
Keep It Concise, Kind, and limited in Scope (K.I.C.K.S.)
Incriminating writings by parties involved in family law cases are becoming more prevalent. This is not surprising, given the increasing popularity of email and texting and the proliferation of social media. Sending a permanent, written communication to an ex-significant other is now just a click away.
It’s not that the individuals who prepare these incriminating documents are trying to be mean or vindictive. Their heart is oftentimes in the right place, but they fail to consider how their writing will actually be perceived by their intended recipient or more importantly, by third parties such as the judge.
The problem is perception. When people write about something they are passionate about, they sometimes become delusional. They believe the reader will see exactly where they are coming from and agree with their position. In reality the reader, who hasn’t shared the same experiences, will oftentimes disagree with the author’s position and will be critical of what was written.
There are some great examples of delusional writers in the movies. Two of my favorite examples are in Jerry Maguire and A Christmas Story. In each, there is a character who writes something he is passionate about. They each sincerely believe their writing will change the opinion of the reader, but not only do they fail to change the reader’s opinion, each writing has disastrous consequences. In Jerry Maguire, Jerry’s mission statement gets him fired. In A Christmas Story, Ralphie’s theme paper not only receives a poor grade, but he gets a P.S. from the teacher, saying that if he were to receive his coveted Red Rider BB Gun, he would shoot his eye out.
To help people avoid incriminating writings in family law cases, I have developed an acronym. We have all heard of K.I.S.S. (Keep It Simple, Stupid). My acronym is a knockoff of that: K.I.C.K.S. (Keep It Concise, Kind, and limited in Scope).
Concise writing is the first step in avoiding incriminating writings. The more volume you produce, the more careless you can get, and the more opportunity there is for a portion of your writing to be used against you. Your writings to your ex-significant other should be limited to a few sentences and cover just the bare facts of what you need to communicate.
Kindness is also important. The tone of your writings to the other party should always be business-like and cordial. Begin the writing with a salutation or greeting. End the writing with a thank you or well wishes. Even in the most cantankerous of cases, a little kindness can go a long way.
Finally, and most importantly, the scope of your writing needs to be limited to just the basic facts/questions you need to get across to sustain your day-to-day life. This is not the time to discuss the inadequacies of your ex-significant other or try to repair old wounds. If you feel like you need to talk these things out, please do it in person, or better yet, speak with friends, family members or a licensed professional.
Once a lawsuit is filed, your relationship ceases to be romantic or familial and converts to a business-like relationship. Whether you are in the business of obtaining a favorable custody order or paying less support, make sure you don’t jeopardize your case by putting something incriminating in writing.
Joe Kuhl (firstname.lastname@example.org) is a partner with Shea, Kohl and Kuhl, L.C. He has been with the firm since 2004.
Attorneys, do you have clients with Social Security law questions you’re not sure how to answer? Are you keeping up with the rapidly-changing rulings regarding Social Security law? Do you have the knowledge to assure that your clients are getting all their available benefits?
These questions and more will be addressed at the January 29 “Complex Social Security Law Issues” video webcast seminar, at which St. Louis area attorney Donald Kohl will be one of the featured experts.
Don will speak on:
- Cross-Examination of the Vocational and Medical Expert (Effective Use of the Dictionary of Occupational Titles – Case Studies, Vocational Implications of Pain and Mental Health Issues, Building Scenarios to Challenge a Vocational Expert’s Opinion, What Makes a Skill “Highly Transferable?”)
- Intake Issues
- Avoiding Ethical Pitfalls (Client Misconduct, Representative Misconduct, Guarding Confidentiality, Addressing Negative Evidence).
Don’s extensive experience in Disability, Compensation, and Personal Injury has led to his demand as a speaker in these areas of the law. He has given a number of talks in Missouri, the review for which led to his invitation to be part of this national panel. Don earned his law degree from Washington University in St. Louis. He is a partner in the St. Charles, MO law firm of Shea, Kohl and Kuhl, LC and a member of the National Organization of Social Security Representatives and the National Association of Disability Representatives, as well as the Missouri Association of Trial Attorneys, the Missouri Bar, and the St. Charles County (MO) and Illinois State bar associations. He is a long-time prosecutor for the City of St. Charles (MO) and has been the municipal judge for the City of St. Peters (MO) since 1985.
Other featured experts for this National Business Institute webinar include Kysta Kennedy and Mark Manske, both social security attorneys from Wisconsin who graduated from Valparaiso University School of Law.
Attorneys participating in the all-day seminar can earn up to 7.2 CLE (continuing legal education) credits. More information and registration can be found at the seminar’s link: Complex Social Security Law Issues.
That is the question but, what is the answer?
If you are faced with this question, there is only one definitive answer: call a lawyer who specializes in DWI or DUI law. When the police officer reads the Missouri Implied Consent law and asks if you want to take the breathalyzer, take the 20 minutes you are entitled to and contact a lawyer. Ask the police officer for a phone book and start making calls. Better yet, have a DWI attorney’s cell phone number in your speed dial.
The reason you must contact a lawyer before deciding whether or not to take the breathalyzer test is because there is no one catch-all answer. The decision is fact-specific to your individual circumstances. Factors to consider:
- Are you under 21 years of age?
- Will you blow a .08 or above?
- Do you have a Commercial Driver’s License (CDL)?
- Do you have any prior alcohol related contact with the law?
- Which county are you in?
- If you refuse to take the breathalyzer, will the police officer get a warrant to draw your blood anyway?
The answers to these questions will help determine whether you will lose your license, how long you will lose your license, and whether there is a way to avoid losing your license.
“Always take the breathalyzer” or “never take the breathalyzer” is never the right answer. “Always call a lawyer first” is always the right answer.
Schedule a brief no-fee appointment with me and I will provide you with my cell phone number to use in case you are ever faced with the question “To blow or not to blow?”
WHEN TO HOLD, FOLD, WALK AWAY, OR RUN:
One of the most common questions we get as divorce practitioners is whether it is okay to move out prior to divorce. To paraphrase the great country and western singer Kenny Rogers, you have got to know when to hold, fold, walk away, or run. The following are three factors to consider before moving out prior to a divorce:
1. SAFETY: If your or your child’s safety is compromised, then it is time to run.
However, the decision to move out is just your first step to securing your safety.
Next, you need to consider filing for an order of protection, which is a court order restraining your spouse from having further contact with you. Through an order of protection you can also receive possession of the marital residence, custody of the children, and child support.
Orders can be broken, so it is important that you also develop a comprehensive safety plan. For more information about orders of protection and safety plans, please check out Domestic Violence and the Law, a pamphlet put out by the Young Lawyers Division of the Missouri Bar.
2. CHILDREN: If safety is not an issue, and minor children are involved, it is best to hold off on moving out until you can get a temporary custody order.
Moving out without a custody order creates a variety of problems. For instance, how are you and your spouse going to share custody of the children? Is your spouse just going to let you take the children with you, or allow you reasonable visitation? Leaving your spouse with the children can subject you to retroactive child support.
Having children does not necessarily mean you are stuck with your spouse until the divorced is finalized. Your attorney can request a temporary custody order. A temporary custody order will ensure that when you do move out, you won’t be leaving your children behind.
3. FINANCES: If safety is not an issue, and you don’t have any children, then the decision whether to hold, fold, walk away, or run prior to a divorce is going to be based on your financial situation.
If your spouse earns enough income to maintain the home, then walking away, or moving out prior to the entry of a divorce petition may be a viable option. However, keep in mind that without a court order there is nothing requiring your spouse to pay the household expenses, which is why often times the most prudent course of action is to wait to move until the divorce is finalized, or until you receive a temporary order apportioning responsibility for the household expenses.
If your spouse does not earn enough to maintain the home then it may be best to hold and stay in the house until the divorce is finalized, unless you are willing to financially maintain both households during the pendency of the action.
Ultimately, the decision on if and when to move out prior to a divorce needs to be made after consultation with an attorney who is experienced in family law matters. So don’t be a gambler; before you move out please consider these factors and discuss them with your family law attorney.
Joe Kuhl is a partner with Shea, Kohl and Kuhl, L.C. He has been with the firm since 2004.