Showing posts with label attorney. Show all posts
Showing posts with label attorney. Show all posts

Thursday, August 24, 2017

Is Collaborative Divorce Better than Mediation?

Collaborative divorce and mediation are two forms of alternative dispute resolution (ADR) that divorcing couples can use to complete the divorce process. One is not inherently “better” than the other, but one can be a better fit for your divorce. Which type of ADR is better for your divorce depends on your relationship with your spouse and the unique details of your marriage.

 Go into the divorce process with an open mind and do your research about your options. Work with your spouse to determine which divorce method is best for you – if you choose collaborative divorce, you will need to work cooperatively with him or her. You can determine if this is possible by seeing how well you can work together to determine the right divorce method for yourselves.

 How Mediation and Collaborative Divorce are Different

 Mediation and collaborative divorce both take place outside the courtroom. With both types of ADR, the divorcing couple maintains a high amount of control over their divorce.

 There are differences between the two, though. The primary difference between collaborative divorce and mediation is the absence of a mediator in a collaborative divorce. A mediator is a neutral third party who guides the divorcing couple toward their settlement, whereas with a collaborative divorce, the couple handles this process with their lawyers.

It Could be Better for your Divorce

 Whether collaborative divorce is better for your divorce than mediation depends largely on your ability to work cooperatively with your spouse. Although both divorce methods are less adversarial than a courtroom divorce, having a mediator present can lessen any lingering tension between a couple whereas in a collaborative divorce session, tension can leak into the couple’s interactions.

Whether collaborative divorce or mediation is better does not just depend on your personalities. Your level of knowledge about the divorce process can also determine whether you are better suited for one or the other. A mediator can explain each part of your settlement and how agreements are reached. He or she is a guide to divorce, whereas with a collaborative divorce, you and your spouse guide yourselves. Of course, you have a divorce lawyer no matter which type of divorce you choose, and your lawyer can answer any questions you have and provide you with the advice you need. But a mediator is an additional layer of professional advice and guidance, guidance that is meant to empower you and your spouse to make productive, fair choices about your divorce settlement.

 Work with an Experienced Winter Park Divorce Lawyer

 If you are considering a collaborative divorce, work with a divorce lawyer in Winter Park who has specific experience facilitating this type of divorce. Contact The Law Offices of Aubrey Harry Ducker, Jr., PLLC today to set up your initial consultation with Mr. Ducker. During your consultation, you can discuss your specific divorce concerns with him and have all your questions answered so you can move forward with your divorce as an informed participant.

Wednesday, September 7, 2016

Advice from a Divorce Lawyer - How to make a Marriage Last!

Use Bonding Behaviors.
· smiling, with eye contact
· skin-to-skin contact
· providing a service or treat without being asked
· giving unsolicited approval, via smiles or compliments
· gazing into each other's eyes
· listening intently, and restating what you hear
· forgiving or overlooking an error or thoughtless remark, past or present
· preparing your partner something to eat
· synchronized breathing
· kissing with lips and tongues
· cradling, or gently rocking, your partner's head and torso (works well on a couch, or with lots of pillows)
· holding, or spooning, each other in stillness
· wordless sounds of contentment and pleasure
· stroking with intent to comfort
· massaging with intent to comfort, especially feet, shoulders and head
· hugging with intent to comfort
· lying with your ear over your partner's heart and listening to the heart beat
· touching and sucking of nipples/breasts
· gently placing your palm over your lover's genitals with intent to comfort rather than arouse
· making time together at bedtime a priority
· gentle intercourse

There are some curious aspects to bonding behaviors.

First, in order to sustain the sparkle in a relationship these behaviors need to occur daily, or almost daily.

Second, they need not occur for long, or be particularly effortful, but they must be genuinely selfless.

Third, there's evidence that the more you use bonding behaviors, the more sensitive your brain becomes to the neurochemicals that help you feel relaxed and loving. (In contrast, intense stimulation sometimes causes tolerance to build up.)

Fourth, some items on the list above may sound like foreplay, but in one important sense they are not. Foreplay is geared toward building sexual tension and climax—which sets off a subtle cycle of neurochemical changes (and sometimes unwelcome perception shifts) before the brain returns to equilibrium.

In contrast, bonding behaviors are geared toward relaxation. They work best when they soothe an old part of the primitive brain known as the amygdala.

Remarkably, these suggestions come from a website related to Porn Addiction. http://yourbrainonporn.com/the-lazy-way-to-stay-in-love

Thursday, January 8, 2015

How Expensive Is a Divorce?

For some, VERY Expensive.
An Alimony check made out for $974,790,317.77 seems a little high. When you consider the man writing the check has a net worth of more than $8 Billion, well, lets just say they are still in court!

You can read about it here: http://www.forbes.com/sites/robertwood/2015/01/08/harold-hamms-975-million-uncashed-divorce-check-how-about-deducting-it/

You can even learn a little about taxes and Divorce Settlements here:
http://www.forbes.com/sites/robertwood/2014/11/11/harold-hamms-billion-dollar-divorce-and-the-irs/2/

In reality, a Divorce can be expensive or cheap, depending upon your desires. If you seek maximum conflict, then expensive it is. If you want years of legal wrangling, go with cheap.

My office strives for efficiently extricating clients from difficulties. We want to prevent problems next year by doing the hard work now. Many times, clients see their dreams realized by selecting Collaborative Divorce and making their own decisions.

Where there are High Assets, people may want to limit their exposure to the public and to continuing attorneys fees and court costs. Collaboration is the way to go.

Visit my website to learn more: www.aubreylaw.com
or simply pick up the phone and call 407-645-3297.
I look forward to hearing from you.


Tuesday, October 21, 2014

In Defense of Marriage and other Divorce Topics

We have Attorney General Pam Bondi defending "traditional" marriage in Florida. George Sheldon is trying to unseat her in the election November 4th.  In China, mobs are defending marriage. http://www.opposingviews.com/i/society/crime/mob-led-scorned-wife-strips-husbands-mistress-naked-streets-beats-her

So you really did not marry the "Love of your life." Or maybe you did but He or She CHANGED! That is so unfair. Perhaps the Love of your Life was really infatuation and it took 17 years to figure out you were not really that taken by their longterm life goals. Today must be Huffington Post day, because every article I read pointed to or derived from an article amalgamated by Ariana Huffington.

The first one is actually called, "I Didn't Marry the Love of My Life." http://www.huffingtonpost.com/2014/08/04/marrying-for-love_n_5642062.html?utm_hp_ref=mostpopular


Another Divorce related Huffington Post article deals with the role of Parenting Coordinators. When parents cannot seem to agree on any issue, many courts will appoint a Parenting Coordinator to facilitate communication for the benefit of the children.
http://www.huffingtonpost.com/nicole-h-sodoma/parenting-coordinators-child-custody_b_5287604.html

Of course, after a Collaborative Divorce, many clients report their communications with their former spouse have never been so good.

Then there are the dreaded 6 Words No Divorced Parent Wants to Hear. http://www.huffingtonpost.com/2014/08/03/parenting-after-divorce_n_5632205.html?utm_hp_ref=mostpopular
You may have guessed: Mom/Dad, I want to live with Dad/Mom. (I know its 7, but the title of the story is not mine to change.)

Along with many guidelines for parents to follow so their children will never utter those horrible words! Do not "badmouth" the other parent. Cover your legal bases. Remain active in your child's life. Recognize the value of the other parent. Yes, good ideas if only clients will follow them.

Friday, October 10, 2014

October is Domestic Violence Awareness Month

I received this today via Email.
 
Good afternoon,
October is Domestic Violence Awareness Month, a time for each of us to reflect on the devastating impact that domestic violence has on our society. You can scarcely get through a day without hearing a news report about a violent incident in the community. The national conversation often revolves around high-profile instances of abuse, illustrating that money and success are not safeguards.
We at the Clerk’s Office deal with those in fear every day as they come to us seeking a judge’s order of protection against someone they believe wants to hurt them.
I am proud to say that our recent partnership with Harbor House of Central Florida has already resulted in getting quick help to more than 25 people who may otherwise have had to wait up to 72 hours for their cases to be heard. If you are dealing with assault or stalking, three days is a long time – maybe too long.
In April, I began deputizing more than two dozen Harbor House employees. Taking the oath of office has allowed them to continue processing domestic-violence injunction petitions during the hours that the Clerk’s Office is closed. That means no one has to wait overnight or through a holiday or weekend for a Clerk’s Office employee to take their paperwork.
“Having this opportunity to swear in our employees to save lives is our primary goal, since being able to process a domestic violence injunction when the Clerk’s Office is closed is crucial for a victim in a domestic-abuse situation,’’ said Carol Wick, president & CEO of Harbor House of Central Florida. “It also enables us to uphold no-contact orders at any Harbor House location, which eliminates one more barrier to protecting survivors and holding abusers accountable.’’
Through September, more than 4,800 people had visited the Orange County Clerk’s Office this year seeking court-ordered protection. If that pace continues, the year-end number will be higher than that of 2013.
The paperwork is several pages long and is available at the Clerk’s Office and its branches. It is also available online at myorangeclerk.com, which allows the petitioner to fill out the forms privately and thoroughly, away from crowds and bystanders at the courthouse.
I also recently made Affidavit of Violation paperwork available online. This is the form a survivor fills out if their attacker has violated an injunction order.
To reach Harbor House of Central Florida after hours, please call 1-800-500-1119.
Regards,



Eduardo “Eddie” Fernández
Orange County Clerk of Courts

Tuesday, September 30, 2014

Deceptive and Unfair Trade Practices - You Have Rights!

The Caller complained that a "salesman showed up at her door, and he and his partner would not leave."  I would have said, feel free to call the police.

The Caller said, "They took my vacuum cleaner and left me with this water thing." She felt overwhelmed by the people who were in her home.
 
The next day, she wrote a letter to tell them to come get the vacuum, and return hers, but when they showed up two days later with the financing contracts, again, she felt too much pressure. After all, she was alone with 3 people in her home she did not know. Again, I would have encouraged her to call the police.
 
But, What To Do NOW?
 
Call the Florida Attorney General at 850-414-3300.
 
Or visit her website at: http://myfloridalegal.com/contact

There are links to Frequently Asked Questions, such as my favorite, I need an attorney. Can the Attorney General’s office represent me?  and others:

  1. I have a complaint against a private business. Where can I go for assistance?
  2. Does the Attorney General’s Office provide any services o benefits to victims of violent crimes that have resulted in financial hardship?
  3. What other services are available for crime victims?
  4. Does the Attorney General help the public with questions on open government?
  5. I believe that someone is using my name to run up charges on my credit.  What can I do?
  6. I have a complaint with another state agency. Can the Attorney General act on my behalf or take action against it?
  7. Who can help me with questions about child support?
  8. I am having trouble with my insurance company. Can the Attorney General take action?
  9. I believe that my local public officials are breaking the law or engaging in unethical behavior. What should I do?
  10. I am constantly receiving telephone calls at night, on weekends, during the dinner hour, from people trying to sell me something. Is there any way I can prevent these calls?
  11. I know of a state law that needs to be changed. Who can I contact?
  12. Where can I find copies of state and federal laws?
  13. What training does the Attorney General’s Office offer to lawenforcement, victims, and the general public?
  14. I am part of a local Crime Stopper organization. How can my group apply for a grant from the Crime Stopper Trust Fund?
  15. Who can help me with a problem concerning my utility?
  16. I have a complaint against my local law enforcement department. Who can help me?
  17. I feel that I am being discriminated against because of age,race, gender, or disability. Can the Attorney General help me?
  18. I do not know all of the details on the products that I buy. How do I protect myself from consumer fraud?
  19. My landlord is not doing what he is supposed to do according to our lease.  Who can help me?
  20. My neighbor recently moved to Florida from out of state and the mover would not unload the truck until my neighbor paid him more than agreed upon. I just moved here from within Florida and the same thing happened to me, plus several items were damaged. How can we recover our money?

If these are not your questions, go here to explore other areas:

http://myfloridalegal.com/pages.nsf/4492D797DC0BD92F85256CB80055FB97/20AFA53C4EC9E3EA85256CCB00522BE1?OpenDocument

There are links to information about Identity Theft: http://myfloridalegal.com/identitytheft
 
Other places on the site allow direct contact with the office of Consumer Protection: http://myfloridalegal.com/pages.nsf/Main/18A7753257FE439085256CC9004EC4F7
 
 
Note:
  1. All information submitted with this complaint is subject to public inspection pursuant to Chapter 119, Florida Statutes.
  2. Whoever knowingly makes a false statement in writing with the intent to mislead a public servant in the performance of his official duty shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 837.06, Florida Statutes.
 
Do not let the warning bother you. If you have been harmed by the actions of a Door to Door Salesman or telephone solicitation, please, protect yourself and others by filing a complaint.
 
An easy link to Citizen Services allows several contacts and valuable information for protecting yourself and your loved ones. http://myfloridalegal.com/pages.nsf/Main/27BC1ED4C58ABD878525792200477D3F
 
There is even a Medicaid Fraud Unit - just in case your healthcare provider is performing too many services you don't need or billing the state for services you did not receive. http://myfloridalegal.com/pages.nsf/Main/ebc480598bbf32d885256cc6005b54d1
 
You can get involved too.
Consumer-conscious senior citizens in Florida have the opportunity to volunteer their time and energy to help the Attorney General's Office fight back against con artists who typically prey on their number. They can become part of a statewide program known as "Seniors vs. Crime."
Formed in 1989 by the Attorney General, Vern Thornton and the American Association of Retired Persons, the program uses retired citizens not only to educate Floridians on consumer fraud but also to help in some consumer investigations. In addition, the volunteers regularly conduct seminars on how seniors can protect themselves from becoming crime victims.
For program information, consumer inquiries, consumer complaints, or to schedule a Consumer Seminar, please call 1-800-203-3099 or visit our web site at www.seniorsvscrime.com.
 
Finally, thre is even an A-Z resource guide here: https://csapp.800helpfla.com/CSPublicApp/AZGuide/AZGuideSearch.aspx
 
So much help is out there. You just have to look.

Thursday, April 3, 2014

A Non-Stressful Way for Florida Couples to Divorce

Going through a divorce in Orlando, Florida, can be a difficult stage of a person's life. Floridians considering divorce should realize that divorce could sometimes be the largest legal, emotional and financial issue they'll ever experience. Ending a marriage severs the legal marital relationship, divides marital assets and sets parenting duties for children.

However, ending a marriage in Florida could be made less difficult if a couple engages in one of several forms of alternative dispute resolution, which may help spouses divorce without the traditional stress and challenge of litigation. Many people are currently choosing a collaborative divorce process because of its different advantages. Divorce and collaborative law is a novel approach that removes the "fight and win" mindset from a divorce process. Collaborative law allows both parties to use negotiation and mediation to settle legal divorce issues.

Collaborative divorce is a popular option for couples because it prevents parties from saying or doing things just to win. Unlike litigation, the collaborative divorce process helps spouses end a marriage amicably, which can also benefit parents who want to settle child-related issues without affecting the child. Because collaborative divorce encourages parents to act as a parenting team when raising their child, divorcing with the collaborative law process can have less emotional impact on a child.
Different professionals in collaborative law may guide divorcing couples through the emotional, financial and legal aspects of divorce. These professionals will remain neutral but will provide the parties with a forum and suggestions to come to a mutual decision.

Compared to a traditional Orlando divorce where the Florida court will decide the divorce settlement, the decision making in collaborative law is done by the spouses and the final outcome solely depends on mutual agreement. More importantly, collaborative divorce may work for both parties who are willing to actively participate in the negotiation.
Source: KERA News, "Three Reasons People Choose Collaborative Divorce," Stephen Becker, March 20, 2014
 

Friday, March 28, 2014

Attorney Ratings are Important - Ask!


Attorney Aubrey H. Ducker Jr has Achieved the AV Preeminent® Rating - the Highest Possible Rating from Martindale-Hubbell®.

Aubrey H. Ducker Jr, a lawyer based in Winter Park, FL whose primary area of practice is Family Law, has earned the AV Preeminent® rating from Martindale-Hubbell®
Winter Park, FL (PR Newswire) January 28, 2014 - Martindale-Hubbell® has confirmed that attorney Aubrey H. Ducker Jr still maintains the AV Preeminent Rating, Martindale-Hubbell's highest possible rating for both ethical standards and legal ability, even after first achieving this rating in 2012.
For more than 130 years, lawyers have relied on the Martindale-Hubbell AV Preeminent® rating while searching for their own expert attorneys. Now anyone can make use of this trusted rating by looking up a lawyer's rating on Lawyers.com or martindale.com. The Martindale-Hubbell® AV Preeminent® rating is the highest possible rating for an attorney for both ethical standards and legal ability. This rating represents the pinnacle of professional excellence. It is achieved only after an attorney has been reviewed and recommended by their peers - members of the bar and the judiciary. Congratulations go to Aubrey H. Ducker Jr who has achieved the AV Preeminent® Rating from Martindale-Hubbell®.

Aubrey H. Ducker Jr commented on the recognition: "The Martindale-Hubbell AV Preeminent Rating is a credential highly valued and sought after in the legal world. It used to be a sort of secret among attorneys who used the rating as a first screen when they needed to hire a lawyer they did not personally know. Now, thanks to the Internet, the Rating is a great way for anyone – lawyers or lay people - to use to screen lawyers. I am thankful to my peers who nominated me for this distinction, and proud to have earned this, the highest possible Martindale-Hubbell rating."

To find out more or to contact Aubrey H. Ducker Jr of Winter Park, FL, call 407-645-3297, or visit http://www.aubreylaw.com.

As a result of this honor, American Registry LLC, has added Aubrey H. Ducker Jr to The Registry™ of Business and Professional Excellence. For more information, search The Registry™ at http://www.americanregistry.com.

Contact Information:
Aubrey H. Ducker Jr

Phone: 407-645-3297

Email Address: AubreyLaw@gmail.com


Attorney Aubrey H. Ducker Jr has Achieved the AV Preeminent® Rating - the Highest Possible Rating from Martindale-Hubbell®.

Tuesday, March 25, 2014

Excerpts from My Book

 Inside the Minds: Strategies for Family Law in Florida
Published by Aspatore Books, a Thomson Reuters business
 
Managing Family Law/Elder Care Law Nexus Cases Using Collaborative Law Strategies

. . . Guardianship in Florida is filed in the probate court. My first guardianship case involved a fifty-year-old deaf mute who had received a large settlement from a lawsuit, but because of his disabilities, the court did not want him to have access to that settlement. Therefore, a guardianship of the person was required and a trustee was appointed to manage his assets. (Funny how the Courts will sometimes set up problems for the people they are really trying to assist.)
 
I have also worked on cases involving long-term marriages—marriages of more than fifty years—where the parents were beginning to decline in health and their children were starting to apply for guardianships or having difficult conversations with their parents regarding what would happen to them in the future; i.e., where they would live, and/or if they would have to go into a nursing home. Many such “end of life” questions come up in the practice of elder law—i.e., how and where I am going to live out my life, and who is going to make decisions for me when I an incapacitated? In some cases, one or both of the parties are becoming incompetent due to dementia, Alzheimer’s, or other frailties of age affecting the decision making process and one spouse’s ability to care for the other spouse.

For example, I once had a case involving a couple who had been married for about sixty-two years. The wife wanted a divorce because she was concerned that her husband was trying to kill her. In all of her interactions with me she appeared to be perfectly competent, but during the divorce proceedings it became clear that she had some defects of the memory. The parties had been separated for two years and were living apart; they had homes in different areas of the state and in different states. They had three children; two were aligned with their mother and wanted her to receive all of the couple’s assets, and one child was aligned with the father. In my opinion, instead of talking to their parents about filing for divorce, the children should have been talking to me about filing a guardianship for both parents, because both parents had serious memory defects. Ultimately, the parents got divorced; and the children became engaged in what I refer to it as a pre-death probate process, because the children were basically dividing up their parents’ assets and aligning themselves with the parent who they were expecting to receive an asset from in future years.

As it turned out, some of the assets that the parents claimed to own were, in fact, non-existent, even though we had done due diligence in that area. For example, both spouses had certificates of deposit and bank statements that showed that they had a certain amount of money in the bank; we later learned that the parents had subsequently taken that money out of the bank and used it for their daily living expenses. Consequently, instead of having $200,000 in the bank, the couple only had $20,000. Indeed, between the time of the signing of a marital settlement agreement that had been negotiated with everyone’s full disclosure and knowledge and the time we appeared in court for a final judgment, it became apparent that both spouses had delusional notions regarding the extent of their assets. Therefore, the couple was probably not competent with respect to making decisions concerning a divorce; and we should have been pursuing guardianship issues instead.

In a similar case, I dealt with a couple who had been married for fifty-six years, and the wife had full-blown Alzheimer’s dementia. She did not know on a day-to-day basis where she was or who she was with; she did recognize her husband and her children, but only to a minimal extent. It was clear that she was fully incompetent. Her husband had been taking care of her for several years; and unfortunately, he had made some statements to his adult children, who were in their fifties, complaining about the care that his wife required. The children had interpreted the husband’s concerns and complaints as a reluctance to care for his wife; and one day, they simply took their mother out of her home, claiming that they were taking her to the beautician to get her hair done, and she was never returned to the home. Although the children were seemingly trying to protect their mother from neglect by her husband, they wound up destroying both parents’ lives. The husband died just nine months later, having never seen his wife again because of the actions of his children.

I believe that we are likely to see more guardianship cases in the elder law area in the future, largely because as our life expectancy increases we will see more couples who have been married for fifty, sixty, or even seventy years. Many of those couples have adult children who have been married for twenty to forty years; and those children are becoming the caregivers of their parents in much greater numbers than in previous years. Ultimately, as adult children become caregivers conflicts will arise over the definition of appropriate care. Indeed, we are seeing a growing number of conflicts over where elderly parents should live and who should be providing their care. Unfortunately, I am also seeing more cases involving parents who are outliving their retirement savings. When they retired twenty or thirty years ago they had significant assets, but now that they have become dependent on nursing home care their assets are gone and their children are applying for them to be enrolled in Medicaid.

All too often, the children of elderly parents receive bad advice that leads to very confusing family law issues, especially when you have one party to a marriage who may be suffering from dementia or Alzheimer’s and may be incompetent, and their children want to control the care of their parent but they do not really know how to go about doing that. For instance, in the case I referred to where the adult children took their mother away from the home where she had been living with her husband of fifty-six years, those adult children started cleaning out bank accounts so that they would have sufficient assets to take care of their mother. The husband then went to an attorney who advised him to file for divorce so that the court would freeze the couple’s assets, thereby ensuring that that husband would be able to protect his half of the assets. However, that was not an effective strategy—in fact, the children used the divorce filing as evidence that their father no longer wanted to have anything to do with his wife. In this case, the husband’s original attorney wound up making his client’s problem far worse than it was to begin with. When the husband consulted me we immediately withdrew the divorce petition and filed a guardianship petition instead. Unfortunately, the children had already used the divorce petition which was filed in Florida as evidence in their case for a conservatorship in California, where they had taken their mother by plane, even though she did not know where she was going; and she never returned to Florida until after her husband’s death.

My Name: Aubrey Harry Ducker Jr.            
My Firm Name: The Law Offices of Aubrey Ducker, PLC
My Title: Managing Member
My Phone #: 407-645-3297
My Email: Aubreylaw@gmail.com
My Website: www.aubreylaw.com
Business Address:  2020 Mizell Avenue, Winter Park, FL 32792

Aubrey Harry Ducker, Jr., is a member of the Orange County Bar Association and the Florida Bar  and the American Bar Association. He has received a AV Preeminent Peer Review Rating from Martindale-Hubbell.  Mr. Ducker serves by court appointment as a Guardian Ad Litem, advocating for children in contested custody and abuse or neglect cases. After serving six years in the U.S. Navy onboard the USS George Bancroft, SSBN-643, Mr. Ducker attended the Valencia Community College, the University of Central Florida and the University of Florida Levin College of Law in Gainesville.  

Mr. Ducker’s practice focuses on Collaborative Divorce, Elder Law, Family Law and Guardianships. He also shares Mortgage Mediation Education Inc. as a co-owner and lecturer on Ethics. Mr. Ducker is previously published under the Aspatore Label with Inside the Minds, Strategies for Family Law in Florida. He also serves on the board of Director of several non-profits and Chairs the Board of Christian Ethics Today.

Mr. Ducker previously served as Attorney for the City of Eagle Lake, Florida

 

Tuesday, February 18, 2014

Is Divorce an All or Nothing Proposal?

In Divorce, an all or nothing mentality may actually harm your chance of a normal life after. Why should it be so? Laws in Florida imply, if not outright require, a roughly 50/50 equitable distribution and recent changes to longstanding presumptions make a 50/50 timesharing proposal the seeming norm.
While an All or Nothing mentality may be bad for divorce, it seems an the All or Nothing thought on  Marriage is actually necessary. Sunday's New York Times, www.nytimes.com included an article: The All or Nothing Marriage.  http://www.nytimes.com/2014/02/15/opinion/sunday/the-all-or-nothing-marriage.html?_r=0  "the answer to whether today’s marriages are better or worse is “both”
The author, explores reasons why some marriages succeed despite great obstacles while others fail with little or no friction.

Anecdotally, I have seen both as well. In my dual practice of Elder Law and Family Law. I have worked on the estate planning of "happily married 60 years" octogenarians and I have worked on divorces for people married less than 8 months. The Times article deftly addresses radical differences that impact both.

While a marriage may be All or Nothing, does the feared divorce have to be? I would say No. Many people are traumatized by divorce; however, many more are happier after leaving a bad marriage. In court just yesterday, a father shook his head in disagreement as Judge Roger McDonald said some people are happier after divorce. I know his ex-wife is happier. I also know he longs for the opportunity to correct the many mistakes of 12 years ago that resulted in a divorce. The children are caught in the middle and as the same judge says in his self-published book, "It's Not the Divorce that Hurts, It's the Fighting."

We no longer live in the world of The Waltons, as the death of my favorite father figure actor Ralph Waite testifies. http://www.nytimes.com/2014/02/15/arts/television/ralph-waite-patriarch-in-tv-series-the-waltons-dies-at-85.html

Social mores are no longer attuned to a clearly religious concept of right and wrong. Today, children must be heard rather than silenced. Women can and do "have it all" as shown by the possible next Governor of Texas, Wendy Davis.  http://www.nytimes.com/2014/02/16/magazine/wendy-davis.html

But, what if you don't want to just divide down the middle? What if you worked harder, contributed more, sacrificed more, brought in more, than your partner? How do we count the division of marital labor in a divorce? As time goes by, many rights that were clear a few years ago have changed. Even with regard to a swimming pool and shared use. http://www.nytimes.com/2014/02/18/nyregion/complex-with-a-rare-indoor-amenity-is-divided-over-who-gets-to-swim-in-it.html

As the courts try to wrangle with rights of the parties, many choose to go their own way. Rather than have the court address all manner of evidence from social media, Facebook, Twitter and the like,
http://www.nytimes.com/2014/02/16/sunday-review/social-media-a-trove-of-clues-and-confessions.html
some people choose a "Nothing" Divorce. As in, Nothing for the Court to Decide. Nothing worth destroying the family over. Nothing is better than destroying the relations between children and parents.

Collaborative Divorce allows the parties to work through the same questions of divorce, but with the help of a communications specialist, two attorneys and an independent financial guru to ensure that each party's needs and goals are met so far as is possible. The Parties Make All Decisions. Nothing is left to the Judge to decide. Routinely Collaborative Law Attorneys are surprised at how warring factions can come together across a table to agree on goals that protect their children, as well as maximize their future. Just ask one.

When you need help, call me, 407-645-3297 or visit my website, www.aubreylaw.com
And just for reading this, enjoy this little nugget: 

{{fozzie}}

Thursday, February 6, 2014

A Divorce Lawyer's Advice on Marriage

How long have you been married? 25 years. I used to answer that question, "13 years, but it feels like forever." I was not meaning an insult, simply stating that I felt like I had always been with my wife. Strange then that I ended up ending marriages for profit. I don't actually end the marriage, I just do the paperwork, and get the court's approval.

The New York Times (www.nytimes.com) had two articles leading up to Valentines' Month that really hit on the issues of marriage, especially Long Term Marriage.

The first, Does Equal Marriage Mean Less Sex, compares the division of chores and the division of income to find a prosperous balance of work while maintaining sexual stereotypes of work division. http://www.nytimes.com/2014/02/09/magazine/does-a-more-equal-marriage-mean-less-sex.html
Both funny and illustrative, the article comes up with the following proper division for pure marital bliss:   The risk of divorce is lowest when the husband does 40 percent of the housework and the wife earns 40 percent of the income.
Wish I had known that before I got engaged! My wife was an attorney when we met, and I was a Sailor. Not the romantic type on a yacht or sailing ship, the enlisted type, E-3. The difference in our incomes was quite staggering. Thankfully, after putting me through college and law school, my wife continues to practice, and our incomes greatly changed. I don't know how to divide housework, but I like doing most of the cooking. I prefer to do the 'man jobs' as well, but she routinely takes out the trash or takes the rolling carts to the street.

Daniel Jones, editor of Modern Love writes another article, Good Enough? That's Great! listing several types of people and problems with long term marriages, some of which might lead to awards of alimony, unequal equitable distribution and many other problems during a litigated divorce. http://www.nytimes.com/2014/02/02/fashion/good-enough-thats-great.html
"Those Who Sneak," as Jones calls them, are the primary pool of potential clients of most attorneys. We all know someone who is just one phone call, text or picture away from a nasty divorce fight. Of course they are the 'quiet victim' in their own mind. The philanderers, cheaters, letches and creeps follow stereotypes that prove the rule. When I hear women say, "all men are dogs" or "he just can't keep it in his pants" I am seldom sympathetic.
Then there are the people Jones refers to as the Quashers.
Quashers suppress their feelings of slights in order to keep their little world safe. Don't upset him. Don't make her angry. Just get over the feelings of anger, hurt, humiliation and fear. It won't happen again, until it does, and once again, they will quash their own feelings, desires, emotions to keep the family safe.

Finally there are the Restorers. Jones writes, "When a restorer couple’s marriage starts to feel subpar, they sit down and have a sensible discussion about where their marriage is and where they would like it to be. Then they set goals and seek the means to achieve those goals. Typically affluent, educated and highly motivated, restorer couples almost single-handedly support the vast and profitable marriage-improvement industry." These are the people who choose Collaborative Marriage and Collaborative Divorce when necessary.

In a Collaborative Divorce, the husband and wife communicate their goals to a team of professionals who assist in keeping the mutual goals as paramount as the marriage comes to an end. The Wife and Husband make all decisions, Not the Judge. Not the Attorneys. The Parties to the Marriage maintain control of their marriage and control of their divorce. Adults know sometimes bad things happen to good people. Adults know bad incidence do not define life. Adults know that hard choices require full disclosure of risks and benefits. Collaborative Attorneys know Moms and Dads make decisions in their children and families' best interests when given the opportunity and assistance.

Call me at 407-645-3297 or visit my website at www.aubreylaw.com
I look forward to helping your family in its time of crisis.

Wednesday, December 18, 2013

Multiple Wives, Multiple Husbands, Not at the Same Time

The title needs work, but in essence, Should Polygamy be allowed for consenting adults? How should Polygamy be recognized in the Courts? What are the benefits and costs of such relationships?

The New York Times (www.nytimes.com) has a great debate of 6 "experts" comparing their pros and cons in today's online edition. http://www.nytimes.com/roomfordebate/2013/12/17/should-plural-marriage-be-legal
 One or two writers are concerned for the rights of women in these multiple relationship marriages, but all writers assume that the multiples will be women and not men. So very sexist.

A Step in the Wrong Direction

W. Bradford Wilcox
W. Bradford Wilcox, the director of the National Marriage Project at the University of Virginia and a senior fellow at the Institute for Family Studies, is the author of “Gender and Parenthood: Biological and Social Scientific Perspectives.” He is on Twitter.

Polygamy Is Bad for Women

Shoshana Grossbard
Shoshana Grossbard is a professor of economics emerita at San Diego State University and a visiting professor of economics at the University of Zaragoza. In 2010, she testified as an expert witness at a constitutional reference case in British Columbia aimed at determining the validity of Canada's polygamy law.

Two writers deftly compare the Gay  Marriage debate with Polygamy:

Enough With the Scare Tactics

John Corvino
John Corvino, chairman of the philosophy department at Wayne State University, is the author of "What’s Wrong With Homosexuality?"
 

Legally, No Different From Same-Sex Unions

Ron Den Otter
Ron Den Otter is an associate professor of political science at Cal Poly San Luis Opisbo.
 
While another is ready to open all doors:

We Are a Nation of Boundary Breakers

Melynda Price
Melynda Price is an associate professor at the University of Kentucky College of Law and blogs at Thoughts of an Ivory Tower Interloper.
 
Finally a writer pleads for intelligent debate and compassion with regard to laws that define the most basic human relationships.

Understanding Who ‘They’ Are

Ralph Richard Banks
Ralph Richard Banks, the Jackson Eli Reynolds professor of law at Stanford Law School, is the author of "Is Marriage for White People? How the African American Marriage Decline Affects Everyone."
 
Of course as a Collaborative Divorce Attorney, I am in favor of Adults making their own decisions with regard to both the making of marriage contracts and the breaking up of same. If you find the discussions above interesting, visit my website, www.aubreylaw.com or drop me an email aubreylaw@gmail.com , or call me at 407-645-3297. I look forward to hearing from you!

Wednesday, November 27, 2013

Why Did the Court Do That?

Sometimes you hear of a court case and immediately say "WHAT???"

Just think of the McDonalds Coffee Case, where the little old lady spilled coffee in the drive thru and sued McDonalds for Millions of Dollars and was eventually awarded 8 Million Dollars. WHAT???

Then there is this case out of New York. 
Brett M.D. v. Elizabeth A.D.
972 N.Y.S.2d 36
(New York Supreme Court, Appellate Division, First Department, October 1, 2013)
             Regardless of the mother's allegations against the father regarding domestic violence and sexual abuse of the child, the Appellate Court found the proper venue was New York, not Florida where the Mother and Child were currently living. WHAT??? These incidents allegedly occurred in New York, the father had agreed to pay the child's travel expenses to New York for the proceedings and any related evaluations, and, whenever feasible, the court would permit mother to appear at proceedings telephonically from Florida, at little expense to her. WHAT??? Ok, the mother had moved to Florida with the child just one month before the father filed a custody case in New York, where the child was born and had lived most of his life. When you have all the facts the court reviewed, and not just the headlines from the paper, the answer may become more reasonable. Or not.

As attorneys, we are sometimes prevented from showing the court ALL THE FACTS. Sometimes "fact" is actually Opinion, and may even be biased. One side's view of facts is always distorted toward their view of the entire case. The other side doesn't want the "fact" interpreted a certain way, and expresses its Opinion of the reason for the "Fact" being presented . . . at Trial, anything can happen.

Oh, back to the McDonalds case. There were many facts that failed to make the news. You can read the Wikipedia account here: http://en.wikipedia.org/wiki/Liebeck_v._McDonald%27s_Restaurants

When you have questions, call me 407-645-3297 or visit my website www.aubreylaw.com
I look forward to speaking with you!
 

Thursday, October 10, 2013

What Makes a Great Marriage? What Makes a Better Divorce?

Saw a Blog today that listed 7 traits of a Great Marriage. It was very interesting, especially the part about not living on leftovers (not food but time)
You can read it here: http://davewillis.org/7-traits-that-separate-good-marriages-from-great-marriages/

As my office was being cleaned this past weekend, I found a copy of The Great Divorce, by C.S.Lewis. http://en.wikipedia.org/wiki/The_Great_Divorce
THIS IS NOT A BOOK ABOUT DIVORCE!!!!
It is a religious book about the difference between Heaven and Hell. I enjoyed it and continue to paraphrase its ideas.

What I really want to do is combine these two works. A Great Marriage can come to an end for many reasons. It doesn't have to be a Bitter Fight. Sometimes over 20 years people just grow up differently. The saying goes:
                                "A Man marries a Woman hoping she will never change.
                                                              A Woman marries a Man hoping to change him.
                                                                                              They are Usually both wrong."

I prefer Collaborative Divorce because it allows for growth and change while maintaining and in many cases improving the lines of communication that Must Remain Intact when children or grandchildren are involved. How nice when parents can work together on their only Daughter's wedding without becoming the sideshow or headache of the affair.

If you have questions about Collaborative Divorce, Call me! 407-645-3297 or visit my website at www.aubreylaw.com
I look forward to speaking with you!

Friday, October 4, 2013

Question: Do you have to pay Sisters who care for Mom and Dad as they grow older?

In Elder Care we often use home health aids whether trained or untrained. A new law scheduled for implementation January 1 of 2015 requires these workers be paid under federal minimum wage guidelines.

http://www.nytimes.com/2013/09/24/opinion/home-care-in-the-home-stretch.html?src=rechp

Thursday, September 19, 2013

Attention Veterans: Many are Available to Help

I am a veteran. If you are too, you should check out this website:
 
Do you know about Veterans Aid and Attendance benefits?
 
The VA is trying to help, many people are also trying to help.
 
VA Launches Incentive to Increase the Dollar Benefit for Disability Claims
On August 1, 2013 the Department of Veterans Affairs division of Veterans Benefits Administration announced a substantial two year-long incentive for veterans filing claims under the new fully developed claim system.  This initiative takes effect on August 6, 2013 and runs through August 5, 2015.  For first-time claims for disability compensation – using a fully developed claim – VA will grant an additional year of benefit, if the claim is successful.  According to Thomas Day, chief training officer of the Senior Veterans Service Alliance, this is a substantial incentive to use fully developed claims.  Mr. Day used an example of a veteran rated at 60% disability who would normally receive $12,312 in his first year of an award under the traditional claim procedure but who could receive $24,624 in his first year of an award using the fully developed claim process.  Mr. Day also pointed out that for attorneys or agents who assist with appeals, this example may result in up to an additional $2,462 in fees for that attorney or agent who successfully represents the veteran using a fully developed claim depending on whether the incentive also applies to fully developed claim appeals.
The Department of Veterans Affairs announced this week that Veterans filing an original Fully Developed Claim (FDC) for service-connected disability compensation may be entitled to up to one-year of retroactive disability benefits. The retroactive benefits, which are in effect Aug. 6, 2013, through Aug. 5, 2015, are a result of a comprehensive legislative package passed by Congress and signed into law by President Obama last year.
"VA strongly encourages Veterans to work with Veterans Service Organizations to file Fully Developed Claims and participate in this initiative, since it means more money in eligible Veterans' pockets simply by providing VA the information it needs up front," said Allison A. Hickey, Under Secretary for Benefits. "At the same time, it helps reduce the inventory of pending claims by speeding the process."
Filing an FDC is typically the fastest way for Veterans to receive a decision on their claims because Fully Developed Claims require Veterans to provide all supporting evidence in their possession when they submit their claims. Often, this is evidence that VA legally must attempt to collect on the Veteran's behalf, which is already in the Veteran’s possession, or is evidence the Veteran could easily obtain, like private treatment records.
When Veterans submit such evidence with their claims, it significantly reduces the amount of time VA spends gathering evidence from them or other sources -- often the longest part of the claims process. While VA will still make efforts to obtain federal records on the Veterans' behalf, the submittal of non-federal records (and any federal records the Veteran may have) with the claim allows VA to issue a decision to the Veteran more quickly. Typically, VA processes FDCs in half the time it takes for a traditionally filed claim.
FDCs can be filed digitally through the joint, DoD-VA online portal, eBenefits (www.ebenefits.va.gov). VA encourages Veterans who cannot file online to work with an accredited Veterans Service Organization (VSO) who can file claims digitally on Veterans' behalf. While submitting an FDC provides a faster decision for any compensation or pension claim, only Veterans who are submitting their very first compensation claim as an FDC are potentially eligible for up to one-year of retroactive disability benefits under the newly implemented law.
FDCs help eliminate VA's claims backlog because they increase production of claims decisions and decrease waiting times. Also, VA assigns FDCs a higher priority than other claims which means Veterans receive decisions to their claim faster than traditional claims.
VA continues to prioritize other specific categories of claims, including those of seriously wounded, terminally ill, Medal of Honor recipients, former Prisoners of War, the homeless and those experiencing extreme financial hardship. As part of its drive to eliminate the claims backlog in 2015, VA also gives a priority to claims more than a year old.
In May, VA announced a new partnership with Veterans Service Organizations and others known as the "Community of Practice," an effort that seeks to reduce the compensation claims backlog for Veterans by increasing the number of FDCs filed by Veterans and their advocates.
VA is continuing to implement several initiatives to meet the Department’s goal to eliminate the claims backlog in 2015. In May, VA announced that it was mandating overtime for claims processors in its 56 regional benefits offices to increase production of compensation claims decisions through the end of FY 2013. In April, VA launched an initiative to expedite disability compensation claims decisions for Veterans who have a waited a year or longer
As a result of these initiatives, VA's total claims inventory remains at lower levels not seen since August 2011. The number of claims in the VA backlog – claims pending over 125 days – has been reduced by 17 percent compared to the highest point in March 2013.
Veterans can learn more about disability benefits on the joint Department of Defense—VA web portal eBenefits at www.ebenefits.va.gov, and the FDC program at www.benefits.va.gov/fdc.
 
In August, the Government Accountability Office (GAO ) released the details of its investigation of accreditation practices of the Department of Veterans Affairs' Office of General Counsel. Accreditation allows attorneys to assist veterans in applying for claims, and is regulated by the DVA-OGC. No one may assist a veteran in the preparation, presentation or prosecution of a claim for veterans benefits without this  'Accreditation' authority.  Four senators responsible for veteran’s issues commissioned the report from the GAO – which was highly critical of the oversight provided by the Office of General Counsel in granting accreditation authority and in administering ongoing accreditation requirements as well as the handling of complaints relating to individuals who are or who are not accredited.
The GAO report recommends the DVA-OGC should address the following concerns:
1. Ensure appropriate level resources to implement the accreditation program, including options for utilizing other VA components and resources outside of OGC.
2. Strengthen initial and continuing knowledge requirements for accreditation representatives.
3. Enhance communications with claimants, including reports of complaints related to their representation. Explore options for incorporating information about representation and veterans’ rights into existing communications and outreach efforts.
4. Address potentially abusive practices by representatives who lack accreditation, charge inappropriate fees, or sell financial products to claimants that are not in their best interest. VA should consider additional authority for such practices and to enforce program rules.

VA generally concurs with the GAO that these issues need to be addressed and in some cases the department will be taking corrective action to provide better oversight. Of particular concern to accredited attorneys and accredited agents at this point are the following actions that VA may initiate in the near future.
  • Doing a better job of conducting background investigations for applications for accreditation from attorneys and agents.
  • Working through the current backlog of yearly certifications of good standing and taking corrective action towards those who are not in good standing or who have not submitted their certification.
  • Working on a solution to notify agents and attorneys who are deficient in completing CLE to provide proper notification and follow-up action. VA does keep track of those individuals completing CLE but does not notify those who are deficient. In addition VA does not notify or identify anywhere on its website those individuals who have submitted CLE or acknowledge compliant completion of their training.
  • Looking at better training for attorneys and agents in order to make them more effective in representing claimants. A major complaint about attorneys and agents is that most are deficient in the knowledge to adequately handle all types of claims. Veterans service organizations, in particular, complain about the number of claim questions they regularly receive from accredited attorneys and accredited agents.
  • Coming up with a better system of notifying claimants of their right to complain about representation and about the unlawful charging of fees. VA will most likely pursue congressional legislation to put teeth into its ability to punish accredited individuals who are not compliant and go after non-accredited individuals who are taking advantage of veterans.
Everyone should be aware that the Office of General Counsel generally recognizes that attorneys can charge a pre-filing consultation fee that is related to a claim but is not a part of the preparation, presentation and prosecution of a claim. The OGC allows that any accredited attorney or agent may charge a fee for any services not related to assistance with a claim. Of course, accredited attorneys and accredited agents can charge a reasonable fee for assistance after a notice of disagreement has been filed or if they are engaged for a fee to provide an initial claim by a disinterested third-party. Claim representatives of veterans service organizations are absolutely prohibited from charging any fee of any kind.
 
 

Morning will come.

Morning will come.
No matter how dark the night!