Marital Settlement Agreements Feed

What is Collaborative Divorce?

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Atty Chris Pearsall

Authored By:  Christopher Pearsall, RI Divorce Attorney
a.k.a.  " The Rhode Island Divorce Coach ℠ "

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Readers, Correct me if you think I am wrong.  I've been reading a few books and websites that are fairly well read by attorneys and legal professionals and held in reasonably high regard and they have caused me some confusion.  If I were to combine the explanations I have read and heard on collaborative divorce, I have heard that it can be a divorce involving attorneys, mediators and/or other professionals such as therapists, psychologists, clinical social workers, psychotherapists and any number of legal and/or mental health or other professionals capable of mediating parties to a divorce.  

From what I have understood, this is way off the mark.  Frankly, I'd like to make sure I have this right.  To my way of thinking a collaborative divorce involves clients and attorneys.  If other professionals are needed in addition to the attorneys then the lawyers would seek their assistance and/or participation for the betterment of the client's involved.

In a collaborative divorce the parties select attorneys to advise them and help them through divorce settlement negotiations.  Typically the parties and their attorneys all sign what is often referred to as a "Participation Agreement/Participation Contract."  The agreement essentially sets forth that the parties agree to whatever written and signed settlement agreement that they reach.  Additionally, the attorneys agree that if, or when, the matter goes to litigation that neither attorney will represent the parties involved. I

The benefit of using the collaborative divorce process as I understand it, is that each party reaches a settlement they are bound to by their own agreement but they do not do so while being ignorant of their legal rights.  Each client has their own attorney for purposes of reaching a settlement.  There you have it, the ultimate goal.  The idea is to reach a settlement and know your legal rights and the pros and cons for each decision you make and how it will affect you.

So, by hiring a collaborative law divorce attorney you hire the lawyer to help you settle the case.  If the case doesn't settle using the collaborative law attorneys then each of the clients must get a new lawyer and duke it out in court.  

Do I have it wrong?  Some colleagues tell me no, other colleagues tell me I do have it wrong and that mediation itself is also a collaborative divorce process.  I don't equate the two the same way even though the word "collaborative" might be a good word to describe the mediation process.

Someone obviously came up with this concept of collaborative law just as I founded the concept of Divorce and Family Law Coaching from the legal dynamic and not the emotional and therapeutic approach that many counselors, therapists and psychologists have developed throughout the country.

I would like the input from attorneys, judges, consumers and anyone who cares to chime in.  I am a person who has wanted to know something and in knowing it to know that it is right.  Does anyone have some good sources that might be found more reputable than others?  I most assuredly won't dwell on the topic and I will participate as a collaborative lawyer as I believe the concept exists because I see the benefits received by clients in choosing this method and in operating in the way I have described.

I welcome your feedback so that I may continue to improve my practice for my clients.


Can I claim my son as a tax deduction on my taxes?

Picture of Attorney Christopher Pearsall
Atty Chris Pearsall

Authored By:  Christopher Pearsall, RI Divorce Attorney
a.k.a.  " The Rhode Island Divorce Coach ℠ "

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Question: I have a question on my son being claimed on ex-wife’s taxes. My son is going to be 20 in a couple weeks (scary). He has income, summer work and interest from bonds we had to cash for school. I can put the income on my tax return but, can I now claim him on my taxes? I don't want the added income and not the deduction. I supply all finances for my son's school and living expenses. I don't know how the agreement holds in the legal document stating ex-wife can claim this son? Does this end like the support for him ended when we modified the contract (child support) because of his turning 18 years of age?

 

Response: If you don't know how your marital settlement agreement with your ex-wife holds or states under what conditions your ex-wife can claim your son then you clearly need to get a copy of that document from your family court file. The wording of that document is likely to be the controlling language and probably has the answers you are looking for. Without it, we are just talking about speculation. For instance, typically if you have a marital settlement agreement with your ex-wife that states that she is allowed to claim your child until he can no longer be claimed anymore then you can't claim the deduction. The child support termination time does not relate to your private agreement with your wife about the tax deduction unless your marital settlement agreement somehow ties the two timeframes together. This is something I have seen done only once in the course of my practice. Unless the marital settlement agreement is somehow worded poorly so that you have a legal way to justify claiming your son as a tax deduction without violating that agreement, then you cannot take the deduction. Without the agreement in front of you, you don't have the information you need to make an informed decision and attorneys such as myself don't have the information we need to advise you properly and accurately based upon your correct circumstances.

As I stated, this is just speculation based upon what may be in that agreement so you can understand that the importance the wording the agreement plays here. Typically if I represent a soon to be ex-wife I also make sure that under some circumstances she may need to realize that if your son files his own taxes and claims his own deduction then she is precluded from taking that deduction too, provided new legislation doesn't state otherwise. You should get the Marital Settlement Agreement from your divorce file at the court and then provide the exact language so that you can obtain legal advice from a lawyer or through this forum that does not involve any form of speculation and we are dealing with facts and not guesswork based upon what you may think is in the document. I hope this has been of some help. Feel free to contact me for a paid advice session once you have the document. Best of Luck to you no matter what you choose to do.


Can I Settle My Divorce Case without a Lawyer?

Recently, I was at the Providence Family Court waiting in line to file some documents for a client.  I heard two people talking to each other at the counter.  From the gist of the conversation I could tell that they were both filing their own divorces and being helped by separate clerks.

One person seemed very confident about his filing and the other younger man didn't seem so confident.  Rather than asking one of the lawyers who were still standing in line waiting to be helped, the less confident man asked the other one if he could settle his case without a lawyer.  The more confident fellow responded "Absolutely, you just put down what you and your wife agree to on paper and submit it to the judge on the court date."  The less confident man seemed reassured that there wasn't more to it and he went on his way breathing a sigh of relief.

Certainly people can settle their divorce cases without a lawyer.  Heck, I see people do it all the time and I'm sure it's not limited to Rhode Island.  I've seen people do it on the day of their divorce on a single piece of lined notebook paper.  It doesn't look fancy but it works for them.

Yet the interaction between the two men got me thinking.  Do people do it better without lawyers or would it be better if they had a lawyer?

As a lawyer you'd think I'd jump in and say that people can't do it and you need a lawyer and all that stuff and there's much more to it than just what people scribble down on a piece of paper because they don't know the law.

Thankfully I was a philosophy major in college for 5 years and it taught me to think until my head hurt.  It was a good match for law school.  Yet the point of mentioning this is that it taught me not to simply advocate for my profession and more clients but to think of the REAL answer and to give it to people straight with no sugar coating.  In otherwords, for people to hear the truth.  

So what is the truth?  The truth is this.  Yes, you can settle your divorce without a lawyer.  AND, you could do it WITH a lawyer!  It's an easy question to answer.  

Then there's the much harder question to answer,  If you can settle your divorce case without a lawyer should you?

I had to ponder that question for a while and make a few assumptions.  Let's assume that you have enough money at least to have an attorney do the bargaining and drafting of the agreement with your spouse.  

Now ask the same question under those circumstances.  Should you settle your divorce case without a lawyer?

I thought about this for days.  I didn't jump to conclusions.  I considered every angle imaginable just with the assumption that the person had enough money to have an attorney bargain for the settlement with your spouse or your spouse's lawyer and then write it up for you.

Get this.  After all of that here is what I came up with. 

Can you settle your divorce without a lawyer?  Absolutely.  Should you?  If you can't afford a lawyer at all for any part of your proceeding then "Yes."  After all, what are you going to do except do it yourself.

Now add in the assumption that you could pay for a lawyer to do your bargaining and write up the Marital Settlement Agreement for you.  Should you?

Here's my answer.  "Yes and No."

Can the person in that position still settle their divorce case without a lawyer?  Absolutely?  Should they do so even if they have the money for a lawyer to do the bargaining and write up the agreement?  Yes, they should try to settle it.

Now the question is "Why?"  Why would I come to such a conclusion when my job is to protect people's rights?

The answer is quite simple.  People who can communicate together will settle their divorce and generally speaking they will settle it in a manner that is acceptable to each them.  In fact, I would be willing to bet that they will do a much faster job than an attorney who will be focusing on the details from the start as lawyers usually do.  

People want their divorce done and over with and therefore they usually process the most important things quickly and settle them.  They don't focus on the details as lawyers do.  Therefore, the fundamentals of the settlement process will usually be completed much more quickly and much more easily than an attorney will handle it.

Keep in mind that I am talking about the fundamentals and not the entire agreement.  Should a person who has the ability to pay a lawyer to draft a final agreement draft that agreement on their own.  Then my answer is "NO."

Your final Marital Settlement Agreement as submitted to the Family Court as an Exhibit is most likely going to be a contract that is going to bind you and your spouse until all the provisions are complied with.  There are too many details that lawyers DO think of that are very important that people do not think of on their own.  If you miss those details then you might as well plan on returning to court time and time again if their is anything at all of significance in your agreement.

When I mean anything of significance, this includes children, visitation, child support, debts to be paid, assets to be kept or sold, real estate, retirement plans, joint physical custody (i.e. placement), items that each party may buy before the Final Judgment of Divorce but after the court hearing, health insurance, division of retirement accounts, etc....

 

All of the things that I mention above involve details that the layperson and even a well-informed person is typically not aware of. Without a lawyer to look over an agreement and find the holes you may have missed with your spouse.  Remember that this agreement is not to intimidate your spouse or scare him or her, but rather it is to make sure important issues that are evident to lawyers experienced in family law are not overlooked by the layperson.

So if you can resolve your divorce with your spouse.  Great!  But have a lawyer look it over, then advise you of your rights regardless of what you may have agreed to and then fill in the holes so that everything is covered between you and your spouse.

Remember, you won't get a chance to do this agreement right.  So get it right the first time.

I'm Affordable and I'm here to help when you need me.

All My Best to You on Your Journey Through The RI Family Court,
Attorney Christopher A. Pearsall - "The Rhode Island Divorce Coach"™ 


Does My Spouse have to Keep Me on the Health Insurance after our Divorce is Finalized?

Question:  

In a Rhode Island Divorce doesn't my spouse have to continue keeping me covered by health insurance even after the divorce is finalized?

 

Answer:

No.  There is no Rhode Island law that says a spouse who has provided health insurance to another spouse must keep the other spouse insured under the existing health insurance plan.

Health Insurance is something that may or may not be negotiable during any particular divorce.  If the company that has set up the health insurance plan has set it in accordance with federal laws then the health insurance company may refuse to cover ex-spouses.  If that is the case, there is no negotiation regarding that particular health insurance because she won't be covered ... period... end of story.  

If the company has set up it's health insurance plan in accordance with Rhode Island law (ie. state law) then ex-spouses are generally covered as long as it is stated in the court's order that the spouse will remain on the insurance plan in accordance with the Rhode Island Health Insurance Continuation Act.

Keep in mind that this has to do with whether the spouse can remain on the insurance plan and NOT whether the spouse who is the main plan member has to pay for that other spouse's premiums.  That is a different issue entirely that I will cover in another question tomorrow.

[Please note that coverage available as a result of military service in the armed forces may be a completely different issue and completely unrelated to this answer depending upon the factual circumstances of your marriage and Rhode Island divorce case.]

 

All my Best to All Who Go Before the Rhode Island Family Court,

I am Attorney Christopher A. Pearsall "The Rhode Island Divorce Coach."


RI divorcee seeks Marital Deduction on Estate Feds Claim Fraud


Feds: RI divorcee seeks $1.7M marital deduction

August 18, 2011|Laura Crimaldi, Associated Press

 

A woman has been accused by federal prosecutors of trying to have a divorce judgment thrown out after tax collectors levied $2.8 million in taxes and fines against her dead ex-husband’s estate on the grounds it wasn’t entitled to a marital deduction.

In a civil complaint filed on Tuesday in U.S. District Court in Providence, the federal government accuses Jo-Ann DerManouelian of trying to get her divorce judgment voided in an “improper and collusive attempt’’ to claim a marital tax deduction for her ex-husband’s $17.7 million estate.

DerManouelian, a former waitress living in Johnston, is among three co-executors of the estate of businessman Aram DerManouelian, who died in 2006 at age 67, the complaint shows. The couple’s divorce was finalized on Jan. 6, 1994. She claims in state court filings, however, that her husband fraudulently obtained the divorce.

After Aram DerManouelian died, his estate filed a federal tax return that claimed a marital deduction of nearly $1.7 million, according to the complaint. The Internal Revenue Service rejected the deduction and issued a fraud penalty of $1.1 million in March.

On June 3, the estate petitioned the U.S. Tax Court to rule it had properly declared a marital deduction, the complaint said. Rhode Island state court spokesman Craig N. Berke said Jo-Ann DerManouelian filed a motion on July 7 in the Family Court of Newport County to have her divorce judgment voided.

A motion hearing on the divorce case has been scheduled for Sept. 29, Berke said. The judge assigned to the case hasn’t taken any action, he added.

Jo-Ann DerManouelian claims in state court that her husband initiated divorce proceedings in 1993 because his marriage to her prohibited him from leaving real estate and pension proceeds to his son from a previous marriage. The couple had no children together, court records show.

“When Jo-Ann asked Aram why he was filing for divorce, Aram would only tell Jo-Ann that she should not fight what he was doing and that he, Aram, would pay his lawyers $2.00 for every $1.00 that his lawyers kept from her if she contested the divorce in any way,’’ her attorney Keith Kyle wrote in court filings.

He also claims the couple lived together as husband and wife from the 1980s until Aram DerManouelian’s death.

“On January 6, 1994, there were no irreconcilable differences between Aram and Jo-Ann, Aram and Jo-Ann were living together as husband and wife, there was no irremediable breakdown of the marriage between Aram and Jo-Ann and the entry of the (divorce judgment) January 4, 1994 was procured by fraud on the court by Aram,’’ Kyle wrote.

Kyle didn’t return a message seeking comment Thursday.

Federal prosecutors, however, say Aram DerManouelian’s marital status was listed as “divorce’’ on his death certificate. It also says he twice referred to Jo-Ann DerManouelian as his “former wife’’ in his will. She also is referred to as his “former wife’’ each of the 12 times she’s listed in trust documents related to the estate, the complaint said.

The complaint states Aram DerManouelian listed his filing status as “head of household’’ or “single’’ until 2005, when the estate filed a joint income tax return that listed Jo-Ann DerManouelian as his spouse. He also deducted alimony payments to his ex-wife from his adjusted gross income, the complaint said.

A spokesman for the U.S. Department of Justice, which is handling the case, had no immediate comment on Thursday.

An obituary for DerManouelian published in The Jamestown Press said he was the “beloved husband’’ of Jo-Ann DerManouelian. He was the founder and president of Warwick-based National Velour Corp. and Johnston-based American Foam Corp., said the obituary, which didn’t cite a cause of death.

American Foam sold the foam blamed for fueling a West Warwick nightclub fire that killed 100 people on Feb. 20, 2003. The fire, at The Station nightclub, began when pyrotechnics for 1980s rock band Great White ignited the foam, which was used as soundproofing around the stage. The company later agreed to pay $6.3 million to settle lawsuits from survivors and victims’ relatives.

DerManouelian also was the owner and developer of Portsmouth Industrial Park in Portsmouth and Omni Park in Middletown, the obituary said.

Jo-Ann DerManouelian, 61, and the other estate co-executors did not return messages on Thursday. Attorney Michael S. Marino, who’s handling the tax court case, also did not return a message.