September 18, 2015

5 Things Your Divorce Attorney Should Be Doing in Your Divorce Case

West Palm Beach Divorce Attorney

Every divorce is different. In addition, not all divorce lawyers have equal experience, equal education, or are equally competent. Consequently, the consumer/client must be continuously educating themselves to ensure that their attorney is fully advising them on all the potential issues or problem areas that could occur in their case. Similarly, consumers/clients need to know what issues may impact their divorce case.

The following are common areas that many clients in divorce cases are either ignorant of or are not taking steps to protect themselves:
  • Protecting alimony and child support income in case an ex-spouse becomes disabled: In this day and age, it is not unusual for working spouses to have disability policies. A disability policy may be a modest one provided by their employer or it may be one that is funded from your spouse's own income. Few people realize that the probability of someone becoming disabled during one's working years is two to three times greater than the risk of death. Despite that fact, the majority of insurance provisions in divorce cases protecting alimony and child support awards deal with only life insurance. Seldom are disability insurance policies incorporated into settlement agreements or divorce judgments. However, even if your working spouse cannot afford or does not possess a disability policy, disability insurance plans do exist that allow the income-receiving spouse to insure the income-producing spouse's income in the event that the ex-spouse becomes totally disabled or is unable to continue making support payments. Most divorce agreements protect support payments against death, but do not include disability protection. If the payer of support becomes disabled, the support payments may be reduced or terminated. Consequently, make sure that you include disability insurance to protect alimony or child support payments in your settlement discussions or in your request for relief in your divorce trial. If your divorce lawyer does not discuss this issue with you, make sure that you bring it up to him or her;
  • Modern drug and alcohol testing can affect your timesharing with your child: It is not uncommon in highly-contested divorce cases to hear the allegation that one or both parents are abusing alcohol or drugs. Under those circumstances, your attorney should be discussing with you the modern state-of-the art technology that can expose drug or alcohol use. Testing of fingernails and hair follicles provide a reliable methodology to determine the use of substances with a history that goes back 3-6 months or more for certain drugs. Unlike hair, the bio markers for substance use for drug and alcohol use (in fingernails) are not affected by chemical processing (hair coloring or bleaching). And even if a spouse comes to a testing site with no fingernails, one simply has to wait 2 weeks for the nails to grow in sufficient quality to test. What is positive in the nail today will still be positive in 2 weeks. Today scientific testing instruments are much more sensitive and research is constantly advancing concerning the bio market testing and evaluation of alcohol and drugs in hair follicles and fingernails. Consequently, if there is a drug or alcohol issue involved in your divorce case, your attorney should be having this conversation about these types of testing with you, rather than relying upon urinalysis or blood testing; 

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  • Protection of your credit during and after a divorce: It is not unusual to see an indemnification clause contained in Marital Settlement Agreements in the event that a former spouse improperly generates a debt in the name of their former husband or wife. However, this clause may not sufficient to fully protect a person. Instead, your divorce attorney should be discussing with you mutual indemnification language which clearly specifies credit reputation damage, rather than having only a general indemnification clause. Credit harm resulting from a current spouse's misbehavior during a divorce or a former spouse's misbehavior after a divorce can have a drastic, negative impact on the innocent spouse for at least 7 years and possibly up to 10 years pursuant to the Fair Credit Reporting Act. Credit harm will impact the innocent spouse's individual, as well as joint, accounts. Violations of a divorce settlement agreement which result in credit harm to the innocent spouse include but are not limited to: failure to notify the spouse that agreed-upon payments will not be made, failure to make the payment in a timely manner or at all (for instance, missing three mortgage payments). Credit damage can include damaging the innocent spouse's credit score, causing credit card cancellations, withdrawal of a mortgage refinance offer, and blocking the financing of the purchase of new assets. The advantage of a credit rehabilitation clause is that it permits a financial expert to attach a money figure to the harm to the innocent spouse's credit. Such a financial calculation attached to a financial reputation rehabilitation clause or credit reputation damage clause in a Marital Settlement Agreement permits a judge to award money damages to the innocent spouse. Those money damages can total tens of thousands of dollars. 
  • Financial experts are necessary in your divorce case from the beginning: Whether your case requires the use of a forensic accountant and/or certified divorce financial planner or a professional to value your business, you must consider involving these professionals at the onset of your divorce case. Doing so will put you in a position to attempt to settle your case earlier in the divorce proceedings. In terms of savings in time, money, and emotional turmoil, the addition of a financial professional to your team can provide significant savings for you. Your case will run much smoother, the financial calculations and charts and summaries will be produced at a far less expensive cost to you (instead of having your attorney's office prepare them). The work of such professionals will provide you, the divorce litigant, necessary information so that you can make financial decisions in your divorce case at a much earlier stage than otherwise; and
  • When involved in a timesharing/custody battle, have a thorough background check performed on the other parent and/or their new partner: A thorough background check should ensure that your children will be safe with the other parent and any future live-in boyfriend/girlfriend. A favorable background report will reassure you that your children are not being cared for by some irresponsible new partner, a felon or, even worse, some kind of child abuser. When dealing with spousal or child support, your spouse or former spouse may try to claim unemployment, lack of access or lack of assets or income. The background search can verify whether he or she is truthful in terms of their employment or lack of employment and, oftentimes, what type of assets that they do or do not possess. Background checks can be obtained at relatively reasonable cost and its emotional benefits to you are immeasurable.

Hopefully, your Florida divorce attorney has already discussed these issues with you. If not, then you may wish to consult with a board-certified family law attorney regarding these issues and actions that you need to know in order to ensure that you, your children, and your future are being best served and well protected.

 

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The Law Firm of Charles D. Jamieson, P.A., has been representing divorce clients for over 25 years. If you wish to schedule a consultation with them regarding your potential divorce, pending divorce, or other family law issue, please click here.

 

 

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