Monday, June 27, 2011

Marketing Update

A few months back, I wrote about a marketing contest for small law firms sponsored by LexisNexis. Recently, the marketing experts - they make the magic happen - hosted a follow-up webinar last week.  Larry Bodine, who was also a webinar participant, posted a great summary on his blog, which you can find here.

Again, huge thank-yous to everyone involved!  This has been an amazing experience!

Tuesday, June 21, 2011

Getting Divorced or Separated? 7 Financial Mistakes Not to Make

AOL News recently published a list of "7 Financial Mistakes Not to Make."  Most of the advice is good, but I do have a few comments to add, both in general and about our firm in particular (in gray; quotations from the article are in black):

1. Thinking that a mediator will protect your financial interests.
. . . [A]lthough lots of couples do experience very bitter divorces, it's also true that when many people break up, one party in the relationship will try everything possible to avoid unnecessary drama . . . For these people, retaining a divorce mediator or arbitrator is one way to accomplish a less combative divorce . . . But be warned: Hiring a mediator just for the sake of "impartiality" or in an attempt to "keep the peace" is usually a bad financial move – a really bad one – particularly if you assume that a mediator will look out for your best interests. "The primary goal of the mediator is to get a settlement. And any settlement means the mediator has done his or her job," says Susan Carlisle, a Los Angeles area CPA who specializes in family law. "Although the best mediators do their [best] to get the settlement as equitable as possible, it's your job to negotiate well for what you need and want. The mediator can't do that for you."  That's why the best mediators always recommend that each party in a divorce also have their own consulting attorney.

It's true that hiring a mediator may reduce costs, but that is not necessarily so.  Often, hiring a mediator is actually more cost effective if the divorce has already become contentious - although you also have to be particularly careful at this stage to look out for your own interests - because you may be able to work through some of your differences prior to getting an attorney involved.  This can seem paradoxical, but here's the reasoning:

In Missouri (even if you work out a settlement with a mediator), one or both of you will typically hire an attorney to actually move the paperwork through the court system.  It is unethical in most circumstances for a mediator, even if he or she is an attorney, to represent either or both of you in this proceeding after he or she helped you work out the settlement agreement.  Therefore, an outside attorney will be required, and some of the discussions with your attorney may be duplicative of those you had with the mediator.  If you've used the mediator to work through most of the contentious issues by this point and the mediator has prepared accurate documentation of your settlement agreement, costs can be kept to a minimum.  However, if there were no (or few) contentious issues to begin with, it is likely that you will have paid as much for the mediator as you would have paid for an attorney, and then you'll just have to do much of the same work over again once you secure representation.

2. Hiring the "best" lawyer that money can buy
Just because you should hire an attorney to handle your divorce doesn't mean it should cost you and arm and a leg. "People generally think that the more expensive a lawyer is, the better they must be. This is not always the case," says Jonathan Blumenthal, a certified financial planner . . . Others want to bring out the all-star legal power in order to get back at a spouse, prolong the process or simply "win" at all costs. "That strategy works really well for the big gun [attorney] but not well for the person getting divorced," says Carlisle. "Unfortunately, lawyers make a living off people's insecurity, pain and desire for revenge. But it almost never works." . . . So what's the best alternative to getting a mediator or hiring a high-priced attorney? The solution may lie in "collaborative law," a process that lies somewhere between mediation and litigation. It's where two attorneys and the couple are committed to not going to court, but you each have a lawyer that looks out for your best interests.

People have asked us whether we practice "collaborative law."  It took us a while to even figure out what they were talking about, but it turns out that we have been practicing a type of collaborative law for years.

Contrary to the author's statement, not all attorneys are out to "make a living off people's insecurity, pain and desire for revenge."  Ouch.  Are there a few of those?  Sure, there are bad apples in every bunch.  But most of the lawyers we have worked with are friendly, hardworking, and trying to do the best for their client (which includes not running up exorbitant and unnecessary costs).

Unlike collaborative law, I can't say we are "committed to not going to court" - we won't hesitate to do so if the case requires it, and I think the same is true of most attorneys in the area.  It's just that most cases don't require it; typically, a lot of money can be saved by settling a case.  Clients often don't realize how expensive it is to go to trial, and - quite the opposite of what the author implies - we find ourselves talking the client out of trial rather than pushing them into a long, drawn-out battle.

3. Keeping joint credit cards and loans
Once you call it quits in a relationship, you need to separate your finances ASAP . . . One reason to close joint credit cards and loans is that each of you will be 100% financially liable for debts incurred – even if the other person racked up the bills . . . Additionally, says Blumenthal, "even if your divorce starts out cordial, things can change quickly when people go into survival mode." You don't want a cash-strapped or bitter ex-spouse to start running up credit card debt, suddenly stop paying bills, or begin incurring financial obligations for which you could be held responsible.

This is generally good advice, although you have to be careful not to run afoul of court rules when what you do will affect the finances of the other party to a dissolution case.  In St. Louis County, Local Court Rule 68.3; specifically see section (2), subsections (E) through (G) regarding what the author mentions here.

4. Insisting on hanging on to the family home
Hanging on to the family home can be a mistake both financially and mentally, experts say . . . [M]any divorcing people, especially women, are adamant about keeping the family home. It's often a misguided effort to provide stability for the kids. "But kids are flexible," says Carlisle . . . "It's important to try to keep the kids in the neighborhood where their friends are and where their school is," she advises. "But that doesn't mean keeping up an expensive home you can't afford."

Again, generally good advice, but incomplete.  If one party does feel strongly about keeping the family home, that person needs to sit down and take a good, hard look at their finances.  What will be coming in - income, maintenance, child support?  What will be going out - regular expenses, tuition, emergencies?  Often these conversations should involve a financial planner.  If there is enough money - and often there is - then you can keep your house.  The question of whether "mentally" it is healthy is a more difficult one to answer.

5. Trying to maintain the exact same lifestyle
. . . In your post divorce, life, . . . you'd be wise to accept a simple truth and break it gently to your children: You and the kids can't do everything you previously did. "There are now two households to support," Carlisle says, which will greatly impact the family's finances . . .

A great point, and something that often gets lost in translation; it's always going to be more expensive to run two households than to run one.  However, statistics show that a significant percentage of custodial mothers experience a decline in their financial status after a divorce, whereas their non-custodial-father counterparts experience an increase in their status.  What can be done about this?  Really, it has to be handled on a case-by-case basis, and it's the attorney's job to look out for your best interests, which includes financial interests now and in the future.

6. Having a weak property settlement agreement
A divorce agreement . . . is an all-important document that acts as a kind of blueprint to what's going to happen in your post-divorce world financially and otherwise . . . Problems erupt, however, when your agreement fails to account for any host of potential issues that not only may arise but are almost guaranteed to come up. For instance, if there's a "change of circumstances" – say, the kids' needs change dramatically, or one party makes a lot more or a lot less money – in most states, either side can go back into court and ask to either receive more financial support or pay less financial support.  If your marital settlement agreement doesn't plan ahead for such contingencies, expect to endure a lot of back-and-forth and potential legal wrangling with your ex down the road. Indeed, the ink is barely dried on many divorce agreements, says Carlisle, "before someone is back in court, demanding a change to the agreement."

Regarding maintenance: It's true that in Missouri, either side can go back to court and ask to change the amount of maintenance paid or received, but they have to have a good reason for doing so in order for a judge to grant a change.  And for as long as a judge is on the family court bench, you'll keep going back to that same judge, so it's best not to file frivolous suits.

Regarding future events: there are some events which really should be accounted for: college expenses, provisions for sale of the family home, settlement of joint debts, etc.  But there are other things - winning the lottery, losing a job, a debilitating car accident - which either are unlikely enough as to be unimportant or cannot be provided for by court rule.  For example, a judge cannot order maintenance payments to terminate at a date certain, because he does not know what the situation will be for the family in the future.  If the situation changes and you think that the change warrants termination of the maintenance payments, it is incumbent upon you and the payor (or, less frequently, the payee) to go to court and ask for the judge's blessing.

In the case of extremely unlikely events, you may spend more time and money hashing out a settlement agreement which covers every possible contingency than you would revisiting the issue if and when it ever arises. 

7. Failing to change your will and insurance policies
Sometimes, people simply forget to change these documents. Other times, they think "I'll get around to doing it later" or "What could it hurt for now?"  Well, it can cause plenty of problems if one spouse remarries – and Carlisle says divorcing men typically remarry within two years – and then that person passes away. The first wife, or previous spouse, gets all the money, and the new spouse might be left in the cold. Not exactly what most people would want to happen after their death.  "When you go through a divorce, you need to make sure you go back and change all your beneficiary information on all accounts and policies," advises Blumenthal. "Regardless of what you have in your will, if your ex is still the beneficiary of your IRA, for example, that will supersede your updated will."

This information is not all true for litigants in Missouri.  By operation of law, a divorce causes the probate court (which handles the distribution of assets bequeathed in someones will) to treat the divorced spouse as though they had already died.  It's easier with names: Bob and Sue get divorced.  Sue forgets to change her will, which leaves everything to Bob.  Sue then dies.  Despite Bob being listed as Sue's beneficiary, the probate court will pretend as though Bob had already died.

Now, this doesn't necessarily mean that the resulting distribution (with Bob out of the picture) is what Sue would have wanted.  Therefore, it is certainly a good idea to go back and examine all legal documents and other assets, especially insurance policies and financial accounts of various types, with beneficiary designations.

Going through a divorce can be one of the most traumatic things that you can go through in life.  Having a good attorney - someone you trust and who will advocate on your behalf - is probably the easiest and most foolproof decision you can make.