Michael Sherman of the Alabama Family Law Blog has posted a truly insightful article about the different styles of divorce attorneys. Like Michael, I am frequently asked by prospective divorce clients if I will be aggressive… or a pit bull… or a shark. They phrase it differently. But, many folks facing divorce think that what they need is the most aggressive divorce lawyer in Marietta, or Atlanta or in Georgia (or whatever jurisdiction they happen to be in).
Here is Michael’s article:
In my years of divorce practice I have seen lots of lawyers handle divorce cases. There are as many different styles as there are different lawyers. But, I have also noticed three recurring styles of lawyer in particular. I call them the lamb, the pit bull and the fox.
The lamb is the lawyer that just sort of goes with the flow. They are reactive, not proactive. They want to avoid confrontation at all costs and that means they also want to avoid going to court at all costs, even if it means convincing their clients to settle for significantly worse terms than they should. The lamb may even be afraid to try the divorce case. He will rarely, if ever, tell his client that he should not sign a settlement offer that is being extended from the other side even if that offer is clearly inequitable. Thankfully, there are not a lot of lambs that last very long as divorce lawyers.
Much more prevalent is the pit bull, who is exactly the opposite. They hate to settle cases. In fact, some of them won’t do anything proactive to try to settle their divorce cases. It is almost as if they take some type of perverse joy in seeing the “blood running in the streets.” The truth is that often they do this simply to develop and maintain a reputation as “Bad Leroy Brown…baddest man in the whole damn town.” When a spouse is angry and in the emotional stage of wanting to exact revenge, they want to be the name on everyone’s lips when that aggrieved spouse asks their neighbor who is the meanest SOB in town. And, so they work hard to maintain that reputation because it makes them a lot of money.
The sad part is that acting like a pit bull is rarely, if ever, in their own client’s best interests. Of course, the pit bull’s main concern is not their client. If you know anything about pit bulls, you will know that they are very aggressive and vicious. But, they are not thinking animals. They act only on instinct. When they fight, they not only destroy the dog they are fighting, but by their own actions hurt themselves and anything else around them (which often includes their own client’s and their client’s children).
The pit bull is aggressive for the sake of being aggressive, not for any long-term benefit it brings their client. Often people going through divorce will think they need an aggressive lawyer to represent them in their divorce. They are wrong. What they need is a lawyer who is assertive. There is a difference. It is the difference between the pit bull and the fox.
The fox is wise and cunning. He sees the big picture. The fox is assertive when he needs to be, compromising when it benefits his clients’ long-term best interests, and always aware of the many different consequences his actions have on his clients. He stands on principle. Yet, he is a strong advocate for his client when it promotes his client’s long-term best interests. He recognizes that reaching a fair settlement is always preferable to trying the case and leaving it up to the judge. Yet, he also knows that if a fair settlement is not forthcoming, then he must be willing and able to prepare to effectively litigate the case in court.
When choosing a divorce lawyer, you should avoid the lamb and the pit bull at all costs. Instead, find yourself a fox.
The following post is by Texas Personal Family Lawyer Dick T. Brown at his blog:
We’ve all seen those TV ads by Nationwide Insurance. The actor or actress is feeling all secure, then WHAM!!!, something totally unexpected hits like the proverbial "bolt from the blue."
On the morning of Friday, June 13th, Tim Russert and I had several things in common. We both had a history of battling high cholesterol and our weight. We both saw excellent cardiologists on a regular basis, had no symptoms of coronary artery disease, and our cardiologists’ testing showed we had no significant coronary artery blockage.
I, who am a little older, got to spend the evening with my sister and her husband. Tim was dead at 58 years of age. Like those commercials say, "Life comes at you fast."
In the days since that Friday, I have done a lot of thinking about all of the people I have know for whom death or disability came suddenly and without warning. My mother and a cousin both died as a result of something unexpected happening in surgery. An old friend decided to trim a tree limb before going to work, fell backwards off his ladder, and died instantly. A wonderful doctor’s wife friend slipped on her sidewalk one morning, fell backwards, and died of a skull fracture. I thought of a colleague who was returning from a football game with his wife and a talented your dance teacher, both of whom pulled out in front of an 18 wheeler in a moment of inattention. The list goes on.
One thing we all have in common is that we are going to die. None of us knows when that will be. And, we also share a high probability of spending some part of our life incapacitated – depending on others to make decisions and care for us. Yet most of us go on from day to day as if we were immortal, not planning for those "what ifs."
A statistic that is shocking to me is that almost 70% of the parents of minor children have not even taken the first step of naming someone to be the guardian of their children is something should happen to them. And just as many Americans of all levels of wealth have made no plans for what will happen to everything they own when they die.
If you have not named guardians for your children, don’t go to bed tonight until you have done so. It’s easy. just CLICK HERE to go to a web site that will walk you step by step through the whole process!
If you are interested in finding out who will get your property when you die, call us at 770-425-6060 to schedule a Family Wealth Planning Session to discuss that very subject and much more. We’ll be gald to hear from you! Our standard charge for a Family Wealth Planning Session is $750, but we will waive it for anyone who refers to this news item or contacts us through this web site.
The following article is by Janet Langjahr of the Florida Divorce Law Blog:
In lengthier marriages where one partner has been a stay-at-home spouse and parent for most of the marriage, the homebound spouse often asks: should I look to get a job now that I know my spouse and I are going to divorce?
There are differing schools of thought on this important question. And sometimes the answer really depends on all the particulars of a given case.
But whether one generally favors putting off (or avoiding altogether) a return to the workforce or diving back in as soon as possible, there are considerations to bear in mind beyond the current number of dollars of salary potentially traded for dollars of current alimony:
- health insurance and other employee benefits of a job
- social security contributions for the future
- retirement benefits
- future raises
- a foot in the workplace at a time of life where that may be difficult to achieve
- the potential for the ex’s death (although life insurance generally can protect against that eventuality)
- the potential for the ex’s disability (statistically a likelier risk, which is less likely to be adequately protected against)
- the potential for the ex’s job loss or career setback
And, of course, the psychological and social benefits of working, which can be very beneficial to people going through divorce.
For more informatione see the Orlando Sentinel article by Jan Warner & Jan Collins below.
Trusts are estate-planning tools that can replace or supplement wills, as well as help manage property during life. A trust manages the distribution of a person’s property by transferring its benefits and obligations to different people. There are many reasons to create a trust, making this property distribution technique a popular choice for many people when creating an estate plan.
Creation of a Trust
The basics of trust creation are fairly simple. To create a trust, the property owner (called the "trustor," "grantor," or "settlor") transfers legal ownership to a person or institution (called the "trustee") to manage that property for the benefit of another person (called the "beneficiary"). The trustee often receives compensation for his or her management role. Trusts create a "fiduciary" relationship running from the trustee to the beneficiary, meaning that the trustee must act solely in the best interests of the beneficiary when dealing with the trust property. If a trustee does not live up to this duty, then the trustee is legally accountable to the beneficiary for any damage to his or her interests. The grantor may act as the trustee himself or herself, and retain ownership instead of transferring the property, but he or she still must act in a fiduciary capacity. A grantor may also name himself or herself as one of the beneficiaries of the trust. In any trust arrangement, however, the trust cannot become effective until the grantor transfers the property to the trustee.
Example: A grantor transfers money to a bank as trustee for the grantor’s children, with the bank instructed to pay the children’s college expenses as needed; the bank carefully manages the money to ensure there are funds available for this purpose. The children do not have control of the funds and cannot use the funds for any other purposes.
Testamentary and Living Trusts
Trusts fall into two broad categories, "testamentary trusts" and "living trusts." A testamentary trust transfers property into the trust only after the death of the grantor. Because a trust allows the grantor to specify conditions for receipt of benefits, as well as to spread payment of benefits over a period of time instead of making a single gift, many people prefer to include a trust in their wills to reinforce their preferences and goals after death. The testamentary trust is not automatically created at death but is commonly specified in a will and so as a will provision, the trust property must go through probate prior to commencement of the trust.
Example: A parent specifies in her will that upon her death her assets should be transferred to a trustee. The trustee manages the assets for the benefit of her children until they reach an age when the parent believes they will be ready to control the assets on their own.
A living trust, also sometimes called an "inter vivos" trust, starts during the life of the grantor, but may be designed to continue after his or her death. This type of trust may help avoid probate if all assets subject to probate are transferred into the trust prior to death. A living trust may be "revocable" or "irrevocable." The grantor of a revocable living trust can change or revoke the terms of the trust any time after the trust commences. The grantor of an irrevocable trust, on the other hand, permanently relinquishes the right to make changes after the trust is created. A revocable trust typically acts as a supplement to a will, or as a way to name a person to manage the grantor’s affairs should he or she become incapacitated. Even a revocable living trust usually specifies that it is irrevocable at the death of the grantor.
Irrevocable trusts transfer assets before death and thus avoid probate. However, revocable trusts are more popular as a means of avoiding the probate process. If a person transfers all of his assets to a revocable trust, he owns no assets at his death. Therefore, his assets do not have to be transferred through the probate process. Even though the grantor of the trust died, the trust did not die, so the trust assets do not have to be probated. However, trusts avoid probate only if all or most of the deceased person’s assets had been transferred to the trust while the person was alive. To allow for the possibility that some assets were not transferred, most revocable living trusts are accompanied by a "pour-over" will, which specifies that at death, all assets not owned by the trustee should be transferred to the trustee of the trust.
Example: Mark sets up a revocable trust, which states that on his death, his assets should be distributed to his children in equal shares. Mark transfers his house to the trust, but does not transfer some rental real estate he owns. At Mark’s death, the trust can distribute the house outside of the probate process, but the rental real estate will have to be probated. Based on the will, the probate court will order the rental real estate be transferred to the trustee, who will then distribute it according to the terms of the trust.
Although a grantor may name himself as trustee of a living trust during his lifetime, he should name a successor trustee to act when he is disabled or deceased. At the grantor’s death, the successor trustee must distribute the assets of the trust in accordance with the directions in the trust document. In many states, certain people must be notified at the death of the grantor.
A-B Trust – A kind of living trust that, upon the death of the first spouse, divides into two distinct trusts: the Marital/Survivor’s Trust and the Credit Shelter/Bypass Trust.
Credit Shelter Trust (aka Bypass Trust) – An estate planning tool whereby part of a deceased spouse’s estate passes to a trust rather than to the surviving spouse, thereby reducing the likelihood that the surviving spouse’s subsequent estate will exceed the estate tax threshold.
Estate Planning – The process of arranging a person’s property and estate, taking into account the laws of wills, taxes, insurance, property and trusts so as to gain the maximum benefit of all laws while carrying out the person’s own wishes for the disposition of his property upon his death.
Estate Tax – A tax imposed on the right to transfer property at death. The estate tax is levied on the decedent’s estate, and not on the heir receiving the property.
Gross Estate – All property owned by a decedent that will be subject to the Federal estate tax. It includes all assets over which the decedent exercises Dominion and Control.
Intestacy – The state or condition of dying without having made a valid will, or without having disposed by will of a part of his property. The intestacy process is much similar to probate, except that the State of California shall determine (by statute) where your assets will go, and who shall be guardian of your minor children.
Marital Trust (aka Survivor’s Trust) – The trust over which the surviving spouse exercises complete control and ownership. Assets placed into the marital trust will be taxed upon the surviving spouse’s death should they exceed the estate tax threshold.
Power of Attorney – A legal instrument whereby you, as principal, can appoint another person as your agent and confer authority on the agent to perform certain specified acts on your behalf. Common powers of attorney include those for finance, and for health care. “Springing” powers of attorney only become valid upon the occurrence of a given event, such as your incapacity or inability to make decisions for yourself.
Probate – A court procedure by which a will is proved to be valid or invalid; also refers to the legal process wherein the estate of a decedent is administered. This process involves: collecting a decedent’s assets, liquidating liabilities, paying necessary taxes, and distributing process to heirs. These activities are carried out by the executor or administrator of the estate, under the supervision of the probate court.
Trust – A legal entity which is created by a Grantor for the benefit of other(s) (called – beneficiaries). Assets placed into a valid trust shall not pass through probate, but through the trust administration process (see Trust Administration).
Trust Administration – The process of administering the estate of a decedent who dies with a valid living trust in place. In the typical A-B Trust, this process involves determining which assets shall belong to the surviving spouse, and which assets shall go into the credit shelter trust.
Unified Credit Amount – The amount of your gross estate that is not subject to the current Federal estate tax.
Will – A legal instrument by which a person, called the “Testator”, determines what shall happen to their property after their death. In addition, a will may determine who shall be the legal guardian(s) of the decedent’s minor children. When a person dies with a will, their estate goes through the probate process (see Probate).
SOURCE: Ainer & Fraker