Archive for February, 2010

Malpractice: It’s Not Just Losing the Case

Wednesday, February 24th, 2010

Attorney malpractice means both professional misconduct and unreasonable lack of skill. Misconduct generally implies commission, that is, doing something unethical or illegal, including taking advantage of the emotional vulnerabilities of client going through a divorce. The bomber, as he is known, is an unethical divorce lawyer who sleeps with his clients, and it is self-evident that this is bad business. A lawyer who has a sexual relationship with a client is unethical and is at risk of civil liability for malpractice, breach of fiduciary duty, fraud, and deceit.

An unreasonable lack of skill generally implies making unacceptable mistakes in judgment or performance, such as missing a filing deadline. Legal malpractice, therefore, is a large enough term to include felonious behavior as well as incompetence. Unacceptable mistakes in judgment or performance does not mean losing a case, any more than medical malpractice means caring for a patient who subsequently dies, or generalized unhappiness with the outcome a divorce because very few people are ever happy.

Strangely, one of the most common causes of legal malpractice is completely preventable. It is a failure to make filing deadlines. No matter how solid the case, a lawyer who misses a filing deadline — for example, an appeal — has just lost it. An excuse — that the paperwork was misplaced — falls on the deaf ears of courts that are not interested in alibis. This is not to say there are not competent lawyers who appear disorganized, but it is a note of caution: A lawyer whose desk looks like a cyclone hit it may be one to avoid.

Often legal malpractice stems from violations of the canons of (legal) ethics, which is also called the Code of Professional Responsibility and are established by state supreme courts. Violations can lead to warnings, fines, suspensions and disbarment. If an attorney’s actions seem questionable, the place to begin is an inquiry at the county bar association.

Lawyers who improperly manage funds left in their trust in escrow accounts frequently find themselves cited for violations of the canons of legal ethics.

Settlements negotiated before a complete discovery of assets, marital and separate, pose a malpractice risk for divorce lawyers, particularly when he or she fails to fully investigate all marital and separate property. A lawyer who fails to inform a client of settlement offer or fails to recommend acceptance of settlement offer may also be liable for malpractice.

In general, attorney malpractice includes several identifiable elements: breach of contract, fiduciary duty or negligence. The plaintiff must prove that the lawyer failed to exercise reasonable skill and that such failure was the proximate cause of damages or loss.

Some jurisdictions require that a person intending to sue a lawyer for malpractice file an affidavit of merit from a professional legal malpractice attorney who certifies that there are at least reasons for consideration of malpractice.

Equitable Distribution: It Does Not Mean Equal

Monday, February 22nd, 2010

Very often in a divorce, spouses struggle to understand the idea of what is called “equitable distribution” of the marital estate because they find out that equitable does not mean equal or even half. And that, depending on which side of the equation a person is, does not seem “fair.”

Equitable distribution of the marital estate, which is the system used in 41 of the 50 states and the District of Columbia for dividing property acquired by spouses during their marriage, means the court has the power to divide and distribute marital property “based on equity and fairness” and are not bound by which party held title to the asset during the marriage. Some states say all property held by the couple is marital, but most equitable distribution states classify property as either marital or separate, and distribute the marital property equitably.

In practical application, equitable distribution very often results in the family home going to the custodial parent, who is often the stay-at-home mother with small children and other offsetting assets going to the noncustodial parent who is often the father. Judges make this division of property even when the division produces a dollar value that is not exactly equal and may indeed by short in favor of the mother. In the eyes of the judge this division is equitable to both parents and the children.

Put in the simplest way, equitable distribution — which is also called equitable assignment — means that a judge tries to be fair, and sometimes that means that when he cuts the loaf in half the pieces will not be equal in size.

The laws on equitable distribution differ from one jurisdiction to the other. In most equitable distribution states, judges must consider certain mandatory factors, but courts afford judges considerable latitude in the interpretation of these factors as part of what is called judicial discretion. The mandatory factors normally include 1) the length of marriage, 2) the age, health, occupation of the parties, 3) station in life and lifestyle of the spouses, 4) liabilities and needs, 5) tangible and intangible contributions of the parties to the marriage, 6) assets and liabilities, sources and amounts of income, 7) behavior of the parties during the marriage, and 8 ) vocational skills and employability.

Even when one spouse owns a great amount of separate property in his or her own right, equitable distribution does not limit his or her claims to the marital estate. Equitable distribution works from an assumption that the marriage is an economic unit and that what the spouse acquired during the marriage is subject to distribution — regardless of need.

A Good Idea for the Second Time Around

Wednesday, February 17th, 2010

The stereotype of a much older man (a “sugar daddy”) with a much younger women (a “gold digger”) is very often with foundation. Some men go into marriages in their sunset years looking for a younger woman who will take care of them, and very often these men protect themselves and their first families with a prenuptial agreement, a legal contract signed by the antique groom and the youthful bride before marriage, typically limiting the spouse’s rights to property and inheritance in the event of divorce.

“Prenups,” as they called, are often recommended for second (or subsequent) marriages when older spouses have property and adult children from early marriages. These agreements afford both parties a measure of protection because if the marriage in the sunset years crashes, the assets are already divided. Everyone is protected.

Prenuptial agreements work particularly well in marriages between an older man and a younger woman because when the “sugar daddy” is significantly older than the new wife, she is virtually certain to outlive him.

Even with these agreements, the parties must take care of their assets. For example, couples taint their assets by commingling them. For example, with or without a prenuptial agreement, a couple who put his money in their account make that money their money.

Good legal advice is a must in writing a prenuptial agreement. In general such agreements must be “fair and reasonable.” And even with a prenuptial agreement, a spouse normally makes some reasonable provision for a second partner in a will. In other words, in death one partner is not free to leave the other partner destitute and penniless by virtue of a premarital agreement in favor of his or her adult children.

At least 25 states and the District of Columbia have adopted the Uniform Premarital Agreement Act (UPAA), which defines the terms and conditions of such agreements. UPAA provides that premarital agreements must meet the requirements of procedural fairness, fair financial disclosure and proper legal advice.

A Very Real Consideration in Litigation

Monday, February 15th, 2010

Aside from the merits of the case, a person contemplating litigation, including divorce, must consider a number of nonlegal factors, including the emotional wear and tear of the case, the time involved, and its cost. Litigation is not cheap, and the longer a cases goes, the more expensive it becomes.

Anyone contemplating a divorce — even a “simple” uncontested divorce — should ask his or her lawyer for an estimate. No one should feel embarrassed to do so. The costs of a drawn-out court battle can be as eye-popping as medical bills.

High cost is undoubtedly one of the reasons for the increased popularity of pro se divorce, where the parties bypass (or at least reduce the involvement of lawyers) by acting as their own attorneys in simplified legal actions.

Legal fees can run from a few hundreds (or less) for a simple uncontested, default divorce that moves through the courts administratively to thousands and thousands of dollars for a battle royal that goes to trial. Normally, the most expensive line item on a legal bill is the lawyer’s hourly fee, but fees for expert witnesses, such as forensic accountants (to track hidden assets) or child psychologists (in a custody fight) rapidly run up the bill.

In a divorce, a couple can work to hold down costs. The more work the spouses do, the less work for the lawyers — and the less expensive the divorce is for the both of them. If Rufus and Rhonda tell their respective lawyers to “have at it” in negotiating a property settlement, both of them will be shocked when they get the bill “for services rendered.” On the other hand, a couple who can hammer out the terms and conditions of their property settlement, child custody and support agreements with each other and by themselves can dramatically reduce the costs of their divorce. If their respective lawyers do it, each spouse may end up paying $250 or more per hour for a lawyer’s time.

Without a doubt, the most expensive way to end a marriage is in a divorce trial, where a two-day trial in some parts of the country can easily cost $70,000 or more, according to sources.

A smart divorce client keeps a good lawyer on a tight leash: he or she never turns the lawyer loose with instructions to go for the kill.

Men Are Strictly Liable

Friday, February 5th, 2010

Unlike maternity, which is never in uncertain from a legal standpoint, paternity can become very much an issue in dispute, particularly by a man who finds himself on the cusp of unsought and unwelcome fatherhood. In all jurisdictions, courts hold men to a strict liability for a child that results from their union. A man cannot claim that he is but a contractor if he impregnates a woman at her request and then argue that he is without a responsibility to support the child. Despite the number of men who attempt to argue along this line, courts have consistently held that a man is responsible for the child.

Parents cannot agree to construct a family in a way that relieves one of them — the father — of child support obligation. Nor can the woman who becomes pregnant in this routine waive child support as an inducement for the man to cooperate. Courts have ruled that, outside of the jurisdiction’s statute on artificial insemination, a man cannot waive his parental rights (or the responsibility of child support), nor can a mother.

Moreover, a man cannot escape his responsibilities by claiming that his partner misrepresented her use of birth control or even her own fertility. Courts have universally held that a father’s allegation of the mother’s deception is completely irrelevant to issues of paternity and child support.

Usually biological paternity can be imposed by a court on a man who has no biological ties to the child when a man has presented himself to the world as the father of a child.

The question of paternity may give rise to a paternity suit, which is a legal action to determine whether a man is the father of a child born out of wedlock. The purpose of this action is to enforce support obligations.