According to an article in the Atlanta Journal Constitution, a recent American Bar Association ("ABA") survey found that outcomes suffer when litigants represent themselves in court.
With the poor economy, an increasing number of litigants choose to represent themselves in order to save money. Sometimes this can be penny-wise but pound foolish. Indeed, 62 percent of the 1,176 judges who participated in the ABA survey state that judicial outcomes for parties without attorneys are worse.
Experienced lawyers know the rules of procedure for bringing evidence before the court. They know about deadlines and notification requirements and how failing to follow certain rules and procedures can prevent even compelling evidence and arguments from ever being considered by a judge. All litigants are bound by these rules regardless of whether they are represented by counsel.
In somewhat amicable divorce cases, couples often agree not to use a lawyer and to draft the paperwork using forms they find on the internet. I have no doubt that some of these people never have an issue. However, for those that have issues, the issues can be significant and, often, unfixable.
It’s a familiar scenario. I meet with someone and tell him or her how much it will cost for me to draft his or her divorce paperwork if the parties can reach an amicable settlement. A few months (or years) later, I get the call: “Guess what, we decided to do the divorce on our own and now I have a big problem and need your help.” Sometimes, I can fix the problem, but it costs them more than it would have cost them had I drafted the original paperwork. Other times, there’s no easy fix because the court has no authority to modify the poor or unfair language in an agreement. Don’t let this be you!
Friday, November 19, 2010
Tuesday, November 16, 2010
Michael Douglas Lawsuit Shows the Importance of Careful Wording in Divorce Settlements
When Michael Douglas and ex-wife Diandra Douglas divorced 10 years ago, they agreed that Diandra Douglas would receive half of her ex-husband's earnings from projects he worked on during their 23-year marriage. Diandra Douglas argues she is entitled to half the actor’s earnings from “Wall Street: Money Never Sleeps” because Michael Douglas developed the role of Gordon Gekko in the original “Wall Street” movie during their marriage and the sequel could never have existed but for Douglas’ original work during their marriage.
Michael Douglas’ argues that because the entirety of the work he did for “Wall Street: Money Never Sleeps” was done after the parties’ marriage, his ex-wife should not benefit from work such work. This is very different from a scenario in which the original “Wall Street” was re-released.
Regardless of whether it’s “fair” that Diandra Douglas receive a share of the proceeds of the sequel to the original movie, the issue will not come down to “fair”. The issue will come down to the precise wording of the parties’ divorce agreement. Because the parties cannot agree to the interpretation, the Court will interpret it for them. If the wording is clear, then the Court should rule based on the “four corners of the document”. If the wording is ambiguous, the Court will likely hear evidence that may give the Court clues into the parties’ intent in agreeing to share in certain earnings post divorce.
This case is an example of how important the wording of a document can be years after it is drafted. This is not a time for sloppy drafting. This is a time to think about all the possible scenarios that can occur years after a document is drafted. An ambiguous document forces parties to relitigate years later and spend more attorney fees, which is something they tried to avoid by settling their case in the first place. An experienced attorney should know how to draft a document that will endure the test of time. That is their job.
Michael Douglas’ argues that because the entirety of the work he did for “Wall Street: Money Never Sleeps” was done after the parties’ marriage, his ex-wife should not benefit from work such work. This is very different from a scenario in which the original “Wall Street” was re-released.
Regardless of whether it’s “fair” that Diandra Douglas receive a share of the proceeds of the sequel to the original movie, the issue will not come down to “fair”. The issue will come down to the precise wording of the parties’ divorce agreement. Because the parties cannot agree to the interpretation, the Court will interpret it for them. If the wording is clear, then the Court should rule based on the “four corners of the document”. If the wording is ambiguous, the Court will likely hear evidence that may give the Court clues into the parties’ intent in agreeing to share in certain earnings post divorce.
This case is an example of how important the wording of a document can be years after it is drafted. This is not a time for sloppy drafting. This is a time to think about all the possible scenarios that can occur years after a document is drafted. An ambiguous document forces parties to relitigate years later and spend more attorney fees, which is something they tried to avoid by settling their case in the first place. An experienced attorney should know how to draft a document that will endure the test of time. That is their job.
Wednesday, November 10, 2010
Finding "Hidden" Money
In many marriages, one spouse handles the finances while the other handles other household matters. For happily married couples, this arrangement can work great. However, when there’s a divorce, the party unfamiliar with the finances can be at a disadvantage. Knowledge is power.
Clients often come in and express a concern that their spouse is concealing assets. That’s when the divorce attorney must put on their detective hat and see what they can find. Tax returns offer great clues because any interest or dividend income will be listed out on a schedule. If there is income listed from ABC bank, yet no documents are produced from any such account, a divorce lawyer can send a subpoena to the bank to obtain the bank statements. Another place to look is loan applications. If any real estate was recently purchased or refinanced, a subpoena can go to the bank to obtain the application. The application will show a list of assets and income.
There are lots of other “tricks of the trade“ divorce attorneys can use to try to find any hidden money. Because every situation is different, experience and creativity are a must.
Clients often come in and express a concern that their spouse is concealing assets. That’s when the divorce attorney must put on their detective hat and see what they can find. Tax returns offer great clues because any interest or dividend income will be listed out on a schedule. If there is income listed from ABC bank, yet no documents are produced from any such account, a divorce lawyer can send a subpoena to the bank to obtain the bank statements. Another place to look is loan applications. If any real estate was recently purchased or refinanced, a subpoena can go to the bank to obtain the application. The application will show a list of assets and income.
There are lots of other “tricks of the trade“ divorce attorneys can use to try to find any hidden money. Because every situation is different, experience and creativity are a must.
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