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Financial Adultery-January 3, 2014

The statistics of how many spouses are committing sexual adultery are disputed, with studies concluding from 25% to 50%.

However, statistics conclude that 31% of spouses are committing financial adultery, defined as lying to their spouses about money, according to a recent study commissioned by ForbesWoman and the National Endowment for Financial Education.

In my experience representing victims who have suffered both marital wrongs, financial misconduct can be more destruction than physical misconduct, and have much longer effects.

Some signals that your partner may be cheating financially:

Changes Topic Away From Money

Easily Becomes Defensive After a Money Question

Insists On Handling Finances Alone

Lies To Others About Money

Parents Have Unhealthy Money Relationship

Spending Is Inconsistent With Income

You Have a Negative Gut Feeling

A Sudden Change In Behavior

Browser History Is Frequently Empty

You’ve Caught Them Before

 

Sometimes, if the amounts of missing funds involved warrant it, I will recommend that my clients hire a forensic detective to prove the misconduct. Other times, targeted Discovery Requests will prove sufficient.

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Online Social Media-December 27, 2013

Online social media issues abound in my family law practice.

To post private and embarrassing items before litigation is bad enough, in that these postings never go away. But, it’s truly amazing what parties in the midst of litigation still post!

If there is a contention that a parent has a drug or alcohol problem, it’s probably not the right time to post photos doing jello shots during Happy Hour or posing next to bong.

He is an interesting article on just such postings:

http://www.msnbc.msn.com/id/37986320/ns/technology_and_science-tech_and_gadgets/

 

 

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Discovery Abuse-December 8, 2013

Discovery is propounding interrogatories, demanding documents, taking depositions, and other such things.

As a trial attorney, I see daily that, despite strict court rules forbidding such behavior, Discovery abuse is still a problem. It drives up litigation costs, delays resolution of disputes, and hinders justice.

Discovery abuse takes many forms, from “hiding the ball” to demanding information compilation and production of information which is of little relevance, but time consuming and annoying.

It’s still fashionable in divorce litigation to demand the other side produce credit cards records going back years, when it is clear the debt will be shared equally. Also, to demand that the other side produce copies of checks going back years, as if the case hinged on the cost of a meal out.

Now, of course, they are cases where such obscure records do matter, but few, indeed.

I think part of the problem is we lawyers practicing “protective lawyering.” We’re concerned that if we don’t demand the production of every single document and something goes wrong, we’ll be later blamed for not demanding ever single document. I think we lawyers have to act with more common sense.

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Pet Mediation-October 4, 2013

Whether about a barking dog disturbing a neighbor or a “custody” battle over the divorcing parties’ furchild, pet mediation is a successful, cost-effective and time-saving alternative dispute resolution process.

Most judges treat the family pet as a piece of furniture to be assigned to one or the other party. Seldom will a judge entertain a “parenting plan.” However, I once represented a party in a two day custody battle over a French Poodle in Middlesex Probate & Family Court before Judge Ginsburg, now retired. In that the judge brought his own dog to court, he was the right judge for that case.

Mediation is, of course the preferred resolution of any controversy, if both parties are amenable to mediation.

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Fewer Trials-September 13, 2013

Despite what the news media reports, the courts are not being flooded with personal injury lawsuits.

What is draining the courts resources is the Government bringing criminal and civil actions against individuals and businesses, and businesses suing businesses.

Even so,  fewer and fewer civil cases are being tried.

Other than the expense, one reason is more liberal Discovery, significantly eliminating “trial by ambush” and promoting settlement.

Another factor is mediation and arbitration. Parties are deciding or resolving disputes outside the court system.

As a mediator, as well as a trial attorney, I think this is wonderful!  However, arbitrators are not bound by judicial precedent or even the law. Therefore, if one tries to research what a case is worth, what a jury will decide, more and more cases will not show up in the research.

All of this is creating a very different way we lawyers practice law. Whether this is for good or ill, ” the jury is still out.”

 

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Post-Secondary Educational Expenses in NH-August 28, 2013

So, the NH legislature has just restored the ability for parents to provide for their children’s college education. Something that parents in every state I’m aware of never lost!

However, the NH Court still cannot order parents to contribute without an agreement, but will enforce their agreement.

The Court posted online yesterday a new Final Divorce Decree Form, with this new language:

IMPORTANT NOTE: The court cannot order parties to pay for college or other educational expenses beyond the completion of high school unless BOTH parties agree. However, if the parties agree to contribute to these expenses by checking the boxes in Section 4, below, this agreement will become an enforceable order of the court.

The parties agree to contributions to college or other educational expenses beyond the completion of high school in the following manner:

Type of contribution (check all that apply):

 Contributions to an account by Petitioner Respondent Both (Specify the amount and frequency of contributions and account information. Also specify what will happen to the contributions in the event the child does not incur post-secondary educational expenses):

Contribution of an asset: (Specify the account or other asset being contributed and its current balance or value. If an asset is identified specify how the asset will be used. Also specify what will happen to the contributions in the event the child does not incur post-secondary educational expenses):

Payments shall be made as post-secondary education expenses are incurred. Payments shall be made by Petitioner Respondent Both (Specify amount to be paid by each party or the percentage or other formula agreed upon to determine the post-secondary education expense obligation agreed to by the parties):

Select one of the following:

Both parties agree that this post-secondary educational expense agreement IS modifiable based on a substantial change in circumstances that was not foreseeable when the agreement was signed.

Both parties agree that this post-secondary education expense agreement is NOT modifiable and the specific dollar amount to be contributed by either or both parents is set forth above.

Note: Before any court hearing to modify or enforce the agreement described above, the parties shall participate in mediation.

 

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Intransigent Insurance Companies-July 21, 2013

I’m representing a client now in a legal malpractice case where both the lawyer’s liability is crystal clear and the amount of money his error cost my client is crystal clear.

Yet, the malpractice carrier continues to offer less that the loss, making it likely that a case which should have been settled, will be litigated.

It reminds me once when I was trying a jury case before Judge Murphy, when he was sitting in the Superior Court, and an arrogant corporate defendant would admit to nothing and contested every single fact. I argued that “questioning whether the World is truly round, does not flatten the Earth!”

 

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Termination of Alimony-June 30, 2013

Most agreements providing alimony include language that the alimony ceases if the recipient is a relationship with the indicia of marriage.
However, I feel award or termination of alimony should not be based on morality, but economics.
Even if someone moves in with someone, the economics, not the sleeping arrangement, should be what’s examined.
Does the recipient of the alimony still need support?
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Minimizing Risk In Prenuptual Agreements-June 2, 2013

From my experience in trying divorce cases, sometimes prenuptial agreements are effective, but often they aren’t, and just lead to further litigation.

A common scenario is the wealthier spouse, usually the husband, has his lawyer draft a prenuptual agreement and the husband presents it to the wife right before the wedding.

This seldom works.

To succeed, there has to really be a full disclosure of assets, an opportunity for independent legal advice, and an opportunity to consider the proposed agreement.

Prenuptial agreements, even if otherwise enforceable, are not enforceable as to custody and visitation issues.

 

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Child Support vs. Parenting Time-April 21, 2013

I represent as many men, as women, in family law matters, and I advocate passionately for both.

Concerning children, it’s really an issue of two different theories in family law.

The test for custody or residential responsibility is what’s in the best interests of the children; what’s essential for their health, safety, and welfare.

The test for child support is the needs of the children balanced against the needs of the non-custodial parent to satisfy those needs. By and large, the custodial parent is considered to be contributing to the children’s needs by physically taking care of them. The courts try to determine this amount by formulas now, but each situation is truly unique and zealous and creative advocacy can make a great difference here.

In other words, you could have a wealthy, generous parent who shouldn’t be allowed within 10 miles of the children.

You could also have a dead beat parent who is wonderful with the children.

The old adage “If you don’t pay, you don’t play,” has no validity in family law.

 

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