• What Is Involved With a Divorce Settlement?

    A divorce settlement, also known as a divorce decree, is a finalized agreement that has been established between both parties going through a divorce. This legal document describes the terms of the divorce and usually addresses issues of child support, alimony, property distribution and other various important decisions and responsibilities that are delegated between both sides. Sometimes both parties can come to make these arrangements amongst themselves with help of a divorce mediator. This usually is the best route to take if the wife and husband are willing to work with each other and are understanding of their now changing situation. It also usually ends up being the more cost-effective solution, if doable. A professional divorce mediator will go through numerous items to reach an agreement on, some of which can be:

    • Child Support
    • Child Custody
    • Visitation
    • Alimony
    • Property & Debt Distribution
    • Marital Assets
    • If the divorcing couple cannot seem to work together, then the divorce will be brought to court where a judge will decide on the above items, as well as mandate any additional requirements to those items. An example of an additional requirement is if one of the parents is considered to be “high risk” that the visitation with the child may need to be supervised by a third party. The terms of the supervision requirements, and if it can ever be terminated, would all be defined within the divorce settlement. Once a divorce settlement has been reached, both sides will sign the agreement and will be expected to follow the conditions described in the settlement. If either person then violates the settlement and does not abide by those terms, then that person is in violation of the settlement and will be held in contempt of court.

      However, the legal system understands how situations and circumstances can change. Rather than being held in contempt of court, it is always in your best interest to speak with a professional divorce attorney to go over your settlement with you. Depending on your unique circumstances, you may be able to file for a post-judgment motion that will allow you to alter the divorce settlement after it has been finalized.

      With a divorce settlement being such an important document, pretty much altering the lives of both parties forever, it is critical to have a lawyer review the document with you before you sign. Having a professional divorce settlement lawyer on your side will make sure that the settlement is something you can live with. And, on the other side of things, if a divorce settlement needs to be overturned or modified, the lawyer can help defend your needs.

      At the Law Offices of Jef Henninger, Esq., our experienced New Jersey divorce settlement lawyers can walk you through the settlement process and make sure your concerns and needs are addressed with your spouse or with the judge. To see what we can do for you, visit our website at http://monmouthdivorcelawfirm.com/ or contact our 24/7 hotline at 732-773-2768 and receive a free initial consultation to begin work on your case today!

  • SEPARATION, DIVORCE AND MARITAL PROPERTY: THE TOP 12 MISTAKES A WOMAN SHOULD AVOID WHEN IT COMES TO DIVORCE PLANNING.

    A matrimonial divorce settlement is NOT an exact science. If a financial divorce settlement was a straight mathematical equation, we wouldn’t need courts and lawyers to resolve matters. Courts are usually required, under Family Law legislation, to take into account a range of factors in deciding who gets what. Too many women settle for a 50% split of the matrimonial property WITHOUT taking into account matters such as significant disparities between what your husband earns and your own weekly /monthly income and any restrictions your age or health might have on your capacity to earn income.

    Another mistake is letting the other spouse retain the matrimonial home EVEN IF you have the ability to buy him out. Real estate property has a habit of increasing in value without you having to do anything. If you pass this up and your spouse pays you out then the problem often is that you don’t then have enough money to purchase a property of your own. Deposits, stamp duty, legal fees etc. can put buying another home out of your reach. You’re left paying out dead money in rent.

    While not as common a mistake, some women will seek to keep the matrimonial home when they really CAN’T afford to financially. If buying out your husband’s share in the house is going to involve you taking out a big loan, you need to factor in the monthly loan repayments PLUS outgoings such as rates, building insurance, public liability insurance and general maintenance costs. Only then will you know whether or not you can actually afford to keep the house.

    Failing to take other matters such as alimony and child support into consideration BEFORE agreeing on a division of the matrimonial property is another problem. These are NOT matters that should be dealt with in isolation.

    It is the current value of property that is taken into account – not replacement value. This means that if the family car is worth $10,000, it is often better to keep it. Too many women find themselves needing a vehicle to get the kids to and from school, football training etc. and having to spend twice what the family car was worth just to replace it. The same mistake is sometimes made when it comes to the marital furniture and effects. They are usually secondhand (even if only recently purchased) and therefore are not worth a lot of money. For example, the fridge that you paid $1,000 for new may now only worth a few hundred dollars. Keeing the bulk of the furniture (if it is in good condition) will avoid you having to pay a lot more money to replace it.

    Property settlements may sometimes be amicable but this does not mean they are fair. Do not accept the inflated financial values your husband is likely to put on property that you want to keep and the low value he’s likely to put on any property he actually wants to keep.

    It is surprising to find women (and sometimes men) arguing over the little things. By this I mean, fighting for items of little financial worth. It’s pointless paying hundreds of dollars in legal fees disputing who is going to get a $50 wedding vase or a $150 stamp collection.

    Another mistake is overlooking other assets such as boats, trailers, machinery, pensions, retirement funds, stocks, shares and life insurance as matrimonial property and/or financial resources.

    Too many women believe that if they go “soft” on their property settlement entitlements, their husband will be easier to deal with as regards the children. This approach rarely produces the desired result. The only real outcome usually is that your spouse perceives you to be weak.

    Another very common mistake is seeking divorce financial planning advice from a lawyer instead of a financial planner. What do lawyers know about financial planning?

    Some women get sucked into believing that by reaching an informal agreement with their husband that is legally binding. It isn’t – even if it’s written down and both parties have signed it.

    Finally, too many women simply give in to their husband because that’s what they’ve always done. Now is the time to stand up for your self, as you now need to be primarily concerned with your financial future!

    © Barry J. Roche

    Barry is the founder of The Self-Help Club (http://www.self-helpclub.com) and the author of the ebook, “How To “Win” When Facing Divorce”. He is a former Family Law Specialist who wrote this book specifically for women. The book is available for purchase at http://www.divorceandwomen.com/help.html. Barry is also the author of a 90 page Manual on “How To Beat Your Financial Worries When You Don’t Have A Job” (also available for purchase at http://www.divorceandwomen.com/bookstore.html).

  • New Jersey Divorce Case Asks, "but I Thought He Agreed To Pay My Lawyer?"

    The New Jersey Appellate Division’s recent unpublished opinion in the case of O’Connell v. Nataloni shows the importance of paying close attention to the language in your divorce settlement agreement as courts will generally hold parties to the exact language of the agreement.

    In the case, the Plaintiff appealed the trial court’s ruling that ordered the Defendant to pay $5,000.00 of the Plaintiff’s attorney fees. The Plaintiff appealed the ruling because her divorce agreement with the Defendant stated that each party would be required to pay the other’s entire counsel fees if either party violated the terms of the divorce agreement. The Plaintiff incurred almost $57,000.00 in attorney fees while she tried to collect an alleged debt of over $60,000.00 in child support and other expenses owed by her former husband. The Appellate Division remanded the case back to the trial court for a further explanation of why the Defendant was not forced the pay the Plaintiff’s entire debt of $57,000.00 in attorney fees when the Defendant had clearly violated the terms of the divorce agreement. The trial court heard the case again and forced the Defendant to pay the Plaintiff $15,000.00 for her attorney fees. Again, the Plaintiff appealed the amount of the award, but her second appeal was denied.

    Divorce settlement agreements (often called “property settlement agreements”) are the most commonly found agreements between spouses. The term property settlement agreement is somewhat misleading as it implies that such agreements only discuss marital property. In practice, these agreements often settle other issues as well, such as custody, visitation, child support, emancipation, alimony, division of marital debt, tax issues, and, of course, attorney fees.

    NJ divorce lawyer discusses lawyer fees award

    In New Jersey, courts have the authority to force one of the parties in the case to pay the other party’s attorney fees at the beginning of the case (the legal term for this is “pendente lite”), in the middle of the matter and at the conclusion of the case. Additionally, New Jersey courts also have the right to award attorney fees to a person who has incurred attorney fees while trying to collect child support monies that are owed. As part of a divorce settlement agreement, both spouses will often negotiate whether one spouse will be responsible for paying the other’s attorney fees (this is often seen when one spouse earns significantly more money that the other spouse).

    The Nataloni case shows how important it is to have an attorney help craft a divorce settlement agreement. The Appellate Division felt that the language in the divorce agreement was so important that it sent the case back to the trial court to find out why the Plaintiff was not awarded more money. If the Plaintiff had not had the assistance of an attorney when she prepared her divorce settlement agreement and instead had relied upon an online, do-it-yourself divorce settlement agreement, she may not have been entitled to the additional $10,000.00 she was able to recover (or perhaps, no award at all)!

    About Maurice Giro NJ divorce attorney Maurice Giro is a Partner at the law firm of Christian, Giro & Tadros, L.L.P., a law firm with offices in New Jersey and New York City. His practice has a focus on divorce and family law. To discuss New Jersey family law and related issues, they can be reached at: Christian, Giro & Tadros, L.L.P. 921 Bergen Ave, Suite 525 Jersey City, NJ 07306 (201) 255-4417 http://www.cgtllp.com/ The Firm has offices located in Roseland, New Jersey, and New York City.

  • Divorce settlement: How to get the money you deserve

    The art of negotiation is the key to getting the money you deserve from a divorce settlement. Divorce is not pleasant and it can be difficult to communicate with your ex. It is in the best interest of both to attempt to negotiate the assets. Do not sell yourself short in order to avoid court, but remember to be fair as well. No one will end up with everything. It is certain that both parties will end up with a good share of the assets, even when going to court. Make the best of negotiation options in order to avoid long, drawn out court proceedings.

    How to get the money you deserve in a divorce settlement:

    Negotiations

    If an impending divorce is inevitable, try to negotiate some things before hiring an attorney. It keeps costs down to get some of the negotiating out of the way prior to hiring an attorney. Attorneys charge a great deal of money to help settle divorce cases. Do not be too greedy when it comes to splitting the assets of the home. Greed during divorce settlements can cost a lot of money. Getting the money you deserve during a divorce settlement does not mean getting all of the assets. It means splitting the assets in the fairest manner possible.

    Mediation

    Mediation often helps separated couples get through the process of divorce without dragging the entire process through the court system. Mediation is a growing trend that often eliminates the need for a lawyer altogether. A mediation can be set up, the couple meets with a mediator and discusses how the assets will be split, etc..  This may be the best option for people who do not have a large amount of assets to worry about or those who get along fairly well together.

    Mediation allows both parties to express their wishes in the divorce settlement. It is a chance for the couple to hear each other out and come to an agreement before wasting money on mounting attorney’s fees. Hashing everything through the courts ends up causing both parties to lose money. Mediation is only suggested for people who were unable to come to an agreement with each other on a personal level. If the couple cannot communicate well with each other, this may be the only route possible to avoid court.

    Attorney

    If all else fails, hire a good divorce attorney. Mediation and negotiations are optimum for getting the most money in a divorce settlement. Unfortunately, taking these cases to court can eat up all the money from the marriage, leaving both parties without much of anything. Divorce attorneys take a huge portion of the money that could be used in a much better way by the divorced couple. It is not always possible to avoid though. If court is necessary to have a judge decide the fate of the assets, the best chance of getting the money you deserve is to hire a divorce attorney. An attorney knows the laws inside and out and can work that to your advantage.

    Divorce can turn into an ugly mess. It does not have to though. Learning how to negotiate is the best option for coming out of the divorce with the money you deserve. Try every avenue to negotiate the asset split so that the assets do not end up in the hands of an attorney. If that fails, do not hesitate to hire an attorney for court. That will be the only way to get the best settlement.

    http://www.helium.com/items/2074378-divorce-settlement-how-to-get-the-money-you-deserve

  • Seven Deadly Sins Of Divorce Settlement

    No one enjoys the divorce process. It may be tempting to rush through the process, agreeing to whatever it takes to end the pain. While understandable this can lead to massive problems in the future. Even people that are attempting to use great caution in settling their divorce can make costly mistakes, especially if they attempt to do it on their own. Divorce lawyers exist for a reason. Their training and experience can save you time, money and heartache in the future. There are many possible traps waiting to be sprung on you in a divorce, but the most common “Seven Deadly Sins” are:

    The First Deadly Sin: Not knowing the liquidity of assets.

    Liquidity is the ability to convert an asset partially or fully into cash. This is an easy thing to determine with assets like savings accounts. All you need is a current statement to see the cash value. They are considered to be highly liquid, because a short trip to the nearest ATM results in one dollar in your hand for every dollar that is in the account. Other assets are not so easy. Assets like antiques, precious metals and collectables are difficult to sell quickly and the market is constantly changing. Depending on the market a house can be nearly impossible to sell, yet it obviously as value.

    Most marital estates consist of more than just cash. That means that unless the parties agree to sell everything and split the proceeds someone is getting an asset as part of their share that the other side will not be getting. Often times one party will receive a non-liquid asset such as the house or a car and the other party will get a more liquid asset of “equal” value like cash or a brokerage account. This seems to make sense. If the house has $5,000 in equity in it and the other side gets $5,000 in cash it would seem fair. The problem with this solution is that while on the surface it appears to be equitable. However, the challenge is found in the party receiving the house’s cash flow. How will the person that keeps the house pay the bills if his or her major asset is not liquid? In other words the value in the house is trapped in the house. While you can borrow against the equity in the house it is difficult and selling a house is often not an option.

    If the proposed settlement is one sided with regard to liquid assets it is a warning sign that one side or the other may be set up to fail when they can’t meet their living expenses, despite having assets.

    The Second Deadly Sin: Failing to Consider the Impact of Taxes.

    Most people don’t think about their taxes on a daily basis, but a misstep in negotiating your divorce could have a major impact on your taxes in the areas of capital gains, income tax, and alimony/support.

    Capital gains are the increase in value of an asset from the amount it is currently worth minus what you paid for it. For example, if you purchased stock years ago for $10 per share of stock and it is now worth $20 per share, you have a capital gain of $10 per share. The increase in value is potentially taxable when you sell the asset. Stocks aren’t the only assets that can have capital gains taxes applied to them. Real estate (including your home), mutual fund accounts and most investments that have increased in value since their purchase could have capital gains taxes due on sale.

    Where this becomes a problem is when your spouse offers to give you an asset that has a large capital gains tax associated with it in exchange for an asset that does not. They may appear to be equal in value but when you sell your asset you will have to pay the capital gains tax thereby reducing the overall amount you receive for your asset, or the value of the asset compared to when your spouse sells there asset and pays little or no capital gains tax. As an example, if your spouse says they want to keep a recently purchased rental property that you paid $100,000 in cash for and offers to give you a rental property that is currently worth $100,000 but was purchased years ago for $25,0000 they are not making you a fair offer. While these two assets may appear on paper to be of equal value if you were to sell both assets the newly purchased property that your spouse is keeping will not have a capital gain and the property you are being offered will have gain of $75,000 which will be taxed at around 15%, thereby reducing the value of the asset you received by roughly $11,000.

    Income taxes can also be affected by a divorce settlement. The IRS considers alimony and spousal support to be income. This means that you have to report it and pay taxes on it at the end of the year. It also means that the person paying it gets to claim it as a deduction on their income tax return, unlike child support.

    Even if spousal support is not a part of your settlement agreement you must consider how you will be filing your tax return for the last year that you are married. You have the option of filing jointly or separately. Filing jointly could result in an increased refund but ownership of that refund must be addressed. If you are filing separately you must consider who will be claiming the various tax exemptions that are available including the interest on your home loan and the children. The IRS has rules regarding the exemptions if you cannot agree but you can assign the deductions as part of your settlement.

    The Third Deadly Sin: Not Understanding How Retirement Accounts Work.

    One of the most fought over and argued about assets is the retirement account and for good reason. For many people the retirement account represents one of the largest assets of their marriage and is the basis for their life after work. For others it is an asset that can be used in the present to create a new, post marriage life. But in order to make good decisions about ownership of these accounts one must understand how they are divided and how they are cashed out.

    If a retirement account is to be divided between the parties a Qualified Domestic Relations Order must be used. This is a complicated document that essentially splits the account into two accounts, one in each party’s name. It is important that a Qualified Domestic Relations Order be used to divide retirement accounts because without it the split would be considered and early distribution and would be subject to penalty taxes. If the plan is to place the funds you receive into a retirement account and leave them there then you might want to consult a financial adviser on getting the best return on your investment, but otherwise you don’t have much to worry about. On the other hand if the goal is to use the funds to live on or meet some expense such as a down payment on a new home then you will have to cash out your share of the retirement plan and face stiff penalties for doing so. It is important to keep these penalties in mind. If your share of the retirement is $100,000 you will only receive $80,000 if you cash it out.

    Normally, distributions from a retirement plan prior to age 591/2 are considered “early distributions” and are subject to a 10% penalty tax as well as ordinary income tax. An exception to this rule, however, is a transfer to an ex-spouse as part of a divorce settlement. A Qualified Domestic Relations Order is used to affect this transfer. Income taxes still apply, so any assets you receive from a “qualified plan”, such as a 401(k), will be subject to a mandatory 20% tax withholding. For example, if you are awarded a $100,000 distribution from an ex-spouses 401(k) you will actually receive only $80,000.

    The Fourth Deadly Sin: Not Considering Credit Ratings and Debt Issues.

    Post-divorce you will be starting a new chapter in your life. Unfortunately the credit sins of your past may follow you. There are steps you can take to reduce the chances that a bad credit rating will follow you. First get a copy of your credit report. This will allow you to identify all accounts that have both your name and your soon to be ex-spouse’s. You will also be able to see any accounts that you were unaware of and any other potential credit problems that might be lurking.

    The next step is to make sure that all joint accounts are closed and if possible paid off. If your name is on the account there is nothing a judge or order can do to change that and if your spouse decides not to pay the debt that they agreed to take on in the settlement agreement the creditor will be coming after you next.

    The Fifth Deadly Sin: Failing to Consider Mortality and Insurance.

    Many divorce decrees create financial obligations such as child support or spousal support. It is common for the decree to include language to the effect that the obligation to pay the amounts set forth in the decree continues past the death of the person ordered to pay as an obligation on their estate. This means that if your spouse agrees to pay support to you, but dies before their obligation is fulfilled their estate must continue to pay. The problem is that it is very common for people to leave their estates to their children so the obligation to pay is meaningless as the children get everything anyway. Or even worse, there is nothing in the estate to satisfy the obligation. That is where insurance comes in. It is vital that any obligation to make payments be tethered to an obligation to obtain and maintain a life insurance policy in an amount that will satisfy the payment obligation should your spouse pass away unexpectedly.

    The Sixth Deadly Sin: Not Making a Budget.

    A common mistake made in divorces is failing to create a realistic budget. Divorce is a major life change. Nothing, including your finances, will be the same afterwards. It is not uncommon for life styles to change based on the change from two incomes to one income or similar changes. It is vital that both parties prepare a realistic budget before accepting any settlement agreement. Agreeing to take on more debt than you can afford is a recipe for disaster. Before you can accept any settlement offer you must fully understand how much money you will be making in the future and how you will be spending it. What may be an attractive offer may not be feasible when you look at you budget and determine that you simply cannot afford it.

    Additionally, understanding what your cost of living will be in the future will help you determine how much and what kind of assets you need out of the settlement. If you intend to maintain a certain life style you will need to know before negotiations begin what assets you will need to keep and what amount of support you must receive or can afford to pay to achieve your goals.

    The Seventh Deadly Sin: Not Dividing Every Asset, Including the Hidden Ones.

    In most divorces both parties are equally aware of the marital assets and debts or at least have equal access to this information, but this is not always the case. Many people take steps to restrict information or hide assets in an effort to retain more of the marital estate for themselves.

    There are a number of ways that people try to hide assets and debts from their spouses, including secret accounts, hidden credit cards, cash dealings, and transferring money to others to hold. There are just as many ways to discovery these hidden assets including examining tax returns and other financial documents, pulling credit reports on yourself and your spouse, closely examining credit card bills and expenditures looking for gaps or unexplained spending, Obviously finding hidden assets can be difficult and time consuming. If you suspect your spouse is hiding assets you will need to work with an attorney and possibly an account that specializes in finding hidden assets before you can accept a settlement agreement.

    Not all assets are left out of the settlement because they are hidden. Some are just missed. Pensions, insurance policies with cash value, and children’s college savings accounts are commonly over looked. Before you enter into a settlement agreement you should review your assets and debts with your attorney to make sure that nothing is missed.

    The vast majority of divorces that are filed each year are resolved through agreement of the parties. These settlements range from fair and equitable for everyone to incredibly unfair and disastrous for one or both parties. Avoiding these seven deadly sins of divorce settlement can help you avoid disaster and move into the next chapter of your life with dignity and the ability to live your life the manner of your choosing.

    Chris McHam is the lead attorney for McHam Law, a Round Rock, Texas based law firm focusing on family law, criminal defense, probate matters and civil litigation in Travis County, Williamson County, Hays County and Bell County

    For more information on this and other legal topics:

    http://www.mchamlaw.com

  • Adjusting After Divorce

    After divorce, many individuals find themselves dealing with insecurities about themselves and their ability to stay in a stable relationship. When children are involved, a divorce can require child custody and visitation rights. Seeing a child go through the rigors of choosing one parent over the other adds to the despair and helplessness a newly divorced parent feels. Yet, divorce does not mean the end of life itself, and many individuals can move on and make a new life for themselves, and for their children.

    After divorce takes place, both parties involved may find it hard to move on and start another romantic relationship. This is especially true in cases where one spouse leaves the other. When someone leaves the marriage, they may have an easier time coping with the “emotional baggage” that can accompany a divorce because the person maintains a sense of control over the situation. It becomes difficult for the person “being left” because they feel powerless to control the situation. The role you played in a divorce can determine how well you are able to move on and eventually begin a new relationship. After divorce, try to think about yourself for once and figure out what it is you really want out of a relationship with another individual. This may require you to think back on your marriage to see what went wrong. Was the lack of love mutual between you and your spouse? If you were the one to end the marriage, what made you seek a divorce in the first place? Once you can assess the situation to some degree, avoid falling into isolation, obsessing over the marriage, or trying to find ways to get even. These emotions will only increase the negativity you may already be feeling about yourself or about your former spouse. Instead, give yourself ample time to heal after a divorce and focus on things you always wanted to do during your marriage, but seemed to never find the time for. Focusing on yourself will allow you give you the opportunity to rediscover what makes you happy while diminishing your chances of starting a “rebound relationship” with someone.

    There are other problems that can happen after a divorce when children have to deal with their parents living at two separate residences. The laws involved in child custody make the divorce process long and difficult for everyone. The kids will feel pulled in every direction in the end. The holiday season can be one of the most stressful times for children since they have to adjust to a new paradigm after the resolution of any custody litigation. Be open with your children and discuss exactly what the plans are. Where will they be spending the holidays? What will they be doing? Which parent will they be spending time with? Tell them that the holiday traditions will be different, but won’t be altered, when both parents are not there. You can help your child adjust to having two homes by listening to the child talk about his frustration and fear. Lots of kids miss their parents when they are not visiting, so keep in touch with them while they are away. Your assistance in helping your child adjust and maintain a sense of normalcy during this difficult situation will surely strengthen your relationship with your child.

    It can take a lot of time and effort to finalize a divorce settlement. This is definitely the case, when a couple has been married for many years. Property includes more than just the house you shared: items such as cars, pets, and personal things will be discussed too. An important aspect of property division is identifying who obtains the house. If you keep the house, ensure that you take responsibility for the payments by having the deed signed over in your name If your ex spouse is getting the house, make sure they sign the deed and take over all responsibility for the residence. Or else, you can be responsible for paying the mortgage, if they do not pay the lender. The disposition of financial assets after divorce depends on the length of the marriage, the parties’ initial assets, and the lawyers’ arguments. Lastly, in certain circumstances, a divorced individual can remain on his or her ex-spouse’s heath insurance plan sometimes up to three years. This may be particularly relevant in situations when kids are involved and have to remain on one parent’s health plan. Your divorce settlement, and the concession made during it, will determine insurance plans.

    After divorce, getting your life back on track can seem daunting. This is especially true when you have to consider property settlements and child custody and visitation rights. Even finding the right time to enter the dating scene again can seem overwhelming. But there are ways to overcome the emotional stress of a divorce. By finding time for yourself and discovering what is important to you, you can gain a whole new outlook on life. This process of self discovery will not only help you on the road to recovery, but it will also facilitate your efforts in making transitions easier for your children.

    Andrew Tenco has recently experienced a divorce and when needing a Sacramento divorce lawyer, wisely chose the divorce mediation alternative. He highly recommends the Family Law Center for their mediation skills whenever needing a local El Dorado Hills lawyer.