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Bill to ban alimony, inheritence to Abusers, Murderers and other Criminals moving through NJ Legislature

A bill which would prohibit people from receiving alimony who are convicted of crimes such as murder, manslaughter, criminal homicide, aggravated assault or similar crimes if the crime results in the death of a family member and the crime was committed after a marriage or civil union is moving through the legislature.  Under the bill, someone  convicted of an attempt or conspiracy to commit murder may not receive alimony from the person who was the intended victim of the attempt or conspiracy.  The bill also proposes that the court may not order a retainer or counsel fee of a party convicted of an attempt or conspiracy to murder the other party to be paid by the party who was the intended victim of the attempt or conspiracy.

The bill is S-1645, introduced by Senators Loretta Weinberg (D-Bergen) and Fred Madden, Jr. (D-Camden/Gloucester).  The bill also removes a parent’s intestate (will-less) succession inheritance rights and rights to administer the minor’s intestate estate if they have refused recognition of the child,or been convicted of sexual assault or contact, attempted murder or conspiracy to murder, abandonment or endangerment against their deceased minor child.

The proposed law change on alimony stem from the case of Calbi vs. Calbi.  In that case, Mrs. Calbi was granted alimony in her divorce against Mr. Calbi after she was convicted of killing their son.  The payments are supposed to start when she is released from jail.  The court noted there was no prohibition in the law.  The proposed inheritance change is the result of a recent New Jersey Appellate Decision, which ruled that a mother of an abused, abandoned child was not entitled to inherit the $1 million inheritance paid by the State to her son’s estate.   The court invoked its power of equity, noting that awarding the mother the money would be “cruel, ironic and inequitable,” since that abuse and neglect contributed to the child’s death.

The Supreme Court confirms…make sure you follow up after your divorce

In an earlier post,  I related a case (Kennedy vs. Plan Administrator) where a divorcing husband failed to change the beneficiary on his retirement plan.  His ex-wife was listed as the beneficiary despite the fact they had a divorce decree in which she was entitled to that money.  An appeals court upheld the payment to the ex-wife under the ERISA law (the law that regulates retirement plans).  Other cases in the federal courts had opined that the divorce decree could amount to a waiver of benefits, even without a  qualified domestic relations order (QDRO).

The case rose to the U.S. Supreme Court and yesterday they rendered an opinion in order to clear up the different rulings.  The Court said “the question remains whether the plan administrator was required to honor [the ex-wife's] waiver [in the divorce] with the consequence” that the benefits should have been paid to the estate.  “We hold that it was not, and that the plan administrator did its statutory ERISA duty by paying the benefits to [the ex-wife] in conformity with the plan documents.”   The court further stated, “[the ex-husband's] designation of [the ex-wife] as his beneficiary was made in the way required; [the ex-wife's] waive was not.”

The court, in a footnote to the opinion, added that the ex-husband’s estate could sue the ex-wife (actually, now her estate as she’s passed away as well) to obtain the money since the waiver agreement was contractual; this would not violate ERISA since the money in question would have already been paid out.

Again, the bottom line is make sure you’ve changed all of your beneficiaries during the divorce process.  The burden is on you.

Bad Economy a Boon for pre-lawsuit Mediation

Lawyers USA reports how the poor economy has encouraged potential litigants and aggrieved parties to seek out mediation before filing suit in court.  Some excerpts:

With the economy crimping corporate legal spending, Allen Smith, a partner with the law firm SettlePou in Dallas, has noticed that clients are more receptive to early mediations of commercial disputes.

“Business clients care about results and getting problems resolved,” he said.

In a recent case, for example, Smith told a corporate client he could pursue a lawsuit against a government agency. Or he could encourage the government to agree to mediation.  Smith drafted a petition to file suit – to show that his client was serious and had valid claims. But he also made it clear that he was “serious about wanting to talk.”

The government agreed to mediation, which has been scheduled for early this year.  “We’re all going to the table before a lawsuit has even been filed, hopefully to walk through what might be the issues,” Smith explained.

The cost savings of mediating the case could be dramatic – about $6,000, compared with up to $150,000 for a lawsuit.

The article further talks about how the “art” of negotiation to get a settlement among and between attorneys has been degrading recently, especially among younger attorneys.  This is largely due to the advent of court annexed mediation.

Please contact me if you want to learn more about saving time and money by mediating a dispute prior to filing a lawsuit.

You don’t have to be an attorney to be a mediator?

This is one of the most common questions I get.  The answer is no.  Why?  There are a number of reasons.

  1. Mediating a dispute is not about the law.  Trials and motions are about the law.  Mediating is about identifying the issues in dispute, fact finding and dissemination, generating potential solutions, quantifying risks and outcomes, identifying the interests of the parties (as opposed to their positions and posturing) and then finding the solution(s) that the parties can agree to.  A mediator needs to understand some psychology (“human nature” and emotions), how people make decisions, be comfortable with numbers (if the case deals with money), etc.
  2. Mediation and advocacy are two different and distinct skills.  The training for both is different and the ethics considerations are different as well.
  3. The mediator can not give legal advice to the mediation participants.  An attorney would be violating the rules of professional conduct by either not being neutral or representing adverse parties in the same matter.  A non-attorney would be violating the unauthorized practice of law.
  4. The mediator is not making any decisions. Only the parties are making the decisions.
  5. In civil cases, each side generally has an attorney at the mediation.  They will often have different legal opinions.  A third opinion from an attorney mediator does not make one side “right” or “wrong”.  In fact, it can often embarrass the “wrong” attorney in front of his client.
  6. A non-attorney can be trained in the subject matter area required (divorce law for instance) in order to educate the parties.  Remember, giving legal advice is forbidden.  In civil cases, the participating attorneys are usually more than happy to educate the mediator.
  7. In civil matters, a jury of your peers is made up of non-attorneys (it’s pretty rare that an attorney makes it onto the jury).  Who better to give some level of feedback as to how the jury might perceive someone’s case?

The Florida Supreme court has recently indicated that being a lawyer or a retired Judge does not give a mediator any advantage or greater success in the role of mediator.  There are many attorneys who are good mediators just as there are many non-lawyer mediators who are good (as well as bad mediators from both categories).  A mediator is good and effective because they have the mediation skills and experience, not because of what their “other” job is.

“Divorce on the Cheap”

CBS4-TV in Miami has a report about divorce mediation.  You can read the full article here.  Some highlights:

One wife reported that the divorce proceeding was ‘short and sweet’, and done in several months’ time. She conceded that by nature such an event can be confrontational and contentious, so this route suited her perfectly.

“If you can take the anger out of this situation, it will help resolve things more peacefully,” she said. “I feel you will come out of this at a much nicer level.”

Mediators say they keep costs down by dodging costly legal motions which are routine in traditional divorce lawsuits, but they say there’s an even bigger benefit.

“It is providing a way for the two parties to come together and work things out without all of the hatred that quite honestly, we lawyers sometimes generate,” [mediator Gerald] Deutsch said.

Mediators mentioned that there are certain times when a divorce mediation goes so smoothly that the man and the wife end up reconciling and wind up negotiating a marriage contract.

If you’re contemplating a divorce, please contact me to discuss how mediation can be beneficial for you.

Mediation is helpful for more than divorcing…it can help couples stay together

When most people think of mediation in the family context, they think of divorce.  However, mediation is valuable in other ways than dissolving a marriage.  It can help the parties communicate better and stay together.  It is not therapy in the traditional sense.  It helps the parties communicate better.  Breakdowns in communication are often the cause of strife.  Actually, many family issues can be resolved with mediation.  View this video (and read the article) for more .

Another pants Appeal…

Roy Pearson won’t go away quietly.  He is now asking for an en banc hearing of his appeal on the $54 million lawsuit over his lost pants.  Previously, 3 appellate judges rejected his appeal and now he wants all 9 judges on the circuit to hear his appeal.

Lost his Pants, Lost his Job, Lost his Lawsuit, Lost his Appeal

The saga of the $54 million lost pants lawsuit appears to finally be over.  As you will recall, a judge in DC sued a cleaner for $54 million for losing a pair of pants.  Roy Pearson subsequently lost the lawsuit and his job as a judge (in part due to the lawsuit).  Now his appeal has been denied.  Excerpted from the Legal Times:

The three-judge panel, consisting of Judges Noel Kramer and Phyllis Thompson and retired Judge Michael Farrell, ruled against Pearson on every argument he made at oral argument in October.

In the opinion, Kramer says Pearson’s argument that a “Satisfaction Guaranteed” sign is an unconditional and unlimited warrant of satisfaction has no basis and that when trial Judge Judith Bartnoff rejected that claim, it showed “basic common sense.”

Kramer’s opinion says Pearson “defies logic” by arguing that the “Same Day Service” sign that the Chungs had in their store was a false statement unless same-day service was always and automatically provided.

Pearson still has a lawsuit pending against the District of Columbia for not being re-appointed to his administrative law judgeship.

Divorce During Tough Economic Times

One of the things I’ve begun to see in my divorce mediation practice is the difficulty of equitable distribution with martial homes that have little equity value, no value or even negative equity.  These are situations where the value of the mortgage(s) plus any home equity loans exceed the market (sale) value of the home.  So to sell the home pursuant to a divorce, the couple would need to potentially take a loss and then have no money coming from the sale for a downpayment on a new home.  In the “good old days” (2007 into early 2008), this wasn’t a problem as most people had equity in their homes.  Thankfully, I haven’t had any divorce clients who are facing foreclosure, but I am sure that will be coming.

There are ways to work around equity problem and mediation is often helpful in doing so.

Two recent articles have addressed the problems this has caused.  The first is an AP article about couples staying together because of the economic times.  One couple in the article is described as living in the same house, not speaking to each other except through their lawyers.

Despite the close quarters, the couple rarely cross paths. Linda Melville said they hadn’t spoken to each other for a month before meeting about their divorce in late November. “The only conversation that takes place is via the lawyers,” she said. “Even negotiating a day to do laundry.”

I’m not sure how they can afford lawyers to do the talking but can’t afford to live apart or sell the home.

The other article is the opposite happening in China.  Reuters reports:

Fears of a prolonged recession in China have triggered a sharp increase in divorce inquiries addressed to lawyers and financial advisers, state media reported on Monday, with timing a key issue.

Wealthy spouses were keen to strike a deal while asset values were low, the China Daily quoted the director of the China Divorce Service Center, Shu Xin, as saying.

Divorce has been on the rise in China, with 7 times the amount in 2007 as in 1980.

If you’re considering a divorce but do not think you can afford it, you may want to consider mediation.