What if my spouse does not want to mediate?

A common mediation Question: “My spouse does not want to mediate. He or she says that we already have agreed upon the terms of the divorce property settlement. He wants to hire an attorney for a flat-fee price. I want to mediate. What are my options?

Your spouse may not want to mediate because your spouse may see it as unnecessary. The agreement is “done” in your spouse’s mind. If the offer is “fair and equitable”, your spouse could be correct. The “fly in the ointment” is that your spouse may be viewing things through his (or her) own prism or may not have considered all issues. In the final analysis, the offer may not be “fair” to you (or to an attorney you have consulted). In that case, you could still negotiate the terms of the property settlement with the help of your attorney and still do it inexpensively provided that your spouse and attorney are flexible enough to accept a counter-offer or that the “back-and forth” negotiations do not require too many attorney contacts.

“Flat fee” quotations for divorce representation can be problematical because a case can easily move from a $2,000 “nominal” (uncontested) case to a $6,000 to $10,000 case (each) or more. I take it that the flat fee price assumes that you will agree upon the terms of the agreement quickly. When I wear my attorney hat, I do not give flat fee quotations unless and until both parties are represented by counsel and have reached an agreement; or, unless I have prepared an agreement on behalf of one person and the other has accepted it, with or without counsel. The fact is that many clients come in thinking that they have a “done deal” but once all issues are surfaced, they do not. While one person can decide not to engage an attorney, I never advise it. One attorney can never represent two persons with opposing interests, even if they are in agreement.

Mediation tries to assist the divorcing couple to reality-test the offers and counter-offers and to make certain that they understand all issues. We have a high rate of success in guiding couples through the process so that they reach a “Memorandum of Understanding”. That memorandum is then taken to an attorney to draft a Property Settlement Agreement (the contract) and to file all other papers to complete the divorce. Even in that case, we recommend that the non-filing person hire an attorney for at least the limited purpose of reviewing the contract prepared by the Plaintiff’s attorney.

So, my first recommendation is to mediate. It is like an insurance policy because it gives both of you some assurance that you will not end up in a contested divorce. The second option is that you hire your own attorney to review any and all offers from your husband and to negotiate in good faith. There is nothing in this second scenario that prohibits you and your attorney from reaching an Agreement at a reasonable price.

I would not recommend that you proceed without an attorney under any circumstances.

I can mediate for both of you as was originally intended. In that case his attorney can still represent your spouse during the mediation and post-mediation. It might be worth one session of 1.5 hours to discuss where both of you are in the process.

I can also represent you individually and negotiate with your husband’s attorney.

Military Member, Family and Veterans Benefits

I recently attended a Continuing Education Seminar with regard to Veterans Benefits.

We covered benefits available to the military member, their spouse and/or children if they die while enlisted, disabled military members, and other benefits for retired Veterans.

It continues to amaze me that there are benefits available that the military members and their families may or may not be aware of.

Top Five Things I Took Away From the Program

1. A military member must complete a DD Form 93, together with their estate planning documents, in order to determine who will get the $100,000 death benefit if the member is killed on duty; who will get their remains, who will get the flag at the funeral, and even letting the military know who should be told first in the event you are killed. The military will follow the Form, regardless of the terms of the Member's Will.

2. Disabled Veterans claims can take several months, or even years to complete. If appealed with the help of an attorney or Veterans' Group, there is a high success rate to overturn the original decisions.

3. The Veteran can get disability benefits for drug and/or alcohol abuse of they can prove that such abuse is directly caused from another diagnosis as a result of a service connected disability.

4. There are new diagnoses added to the list that a Veteran can collect for, where payments can be made retroactively from the original claim.

5. If you know Veteran or a Military Member (or their family) that have questions, please do not hesitate to contact our office or direct them to their nearest Veteran Administration Office.

Providing Advice to other Attorneys in Family Law

I have signed up for the Rhode Island Bar Association’s Online Attorney Resources (OAR) as a Volunteer in the area of Domestic/Family Law. I expect to be most helpful for military family law questions, and division of retirement plans.

This service is exclusively for Bar members and available through the Members Only section of the Bar's web site at www.ribar.com, to help Bar members provide and receive timely and direct assistance with practice-related questions.

OAR provides Bar members with the names, contact information and Bar admission date of volunteer attorneys willing to answer questions concerning particular practice areas based on the volunteer's professional knowledge and experience. As the Rhode Island Bar Association does not and cannot certify attorney expertise in a given practice area, the Bar does not verify any information or advice provided by OAR volunteers. Questions channeled through OAR volunteers may range from inquiries concerning specific court procedures and expectations to current and future opportunities within practice areas. However, OAR is NOT a forum for Bar members to engage other Bar members as unofficial co-counsel in an on-going case.

As everyone's time is a limited and precious commodity, all Bar members who contact volunteers must formulate their questions concisely prior to contact and ensure the initial contact takes no longer than 3 to 5 minutes unless mutually-agreed upon by both parties.

OAR offers two options:

1) Bar members willing to volunteer as information resources.

2) Bar members with questions about a particular area of the law.

OAR practice areas include: Domestic/Family Law Practice; Civil Practice in Rhode Island District Court - Collections Law & Evictions; Civil Practice in Rhode Island Superior Court - Plaintiff's Personal Injury Practice; Criminal Law Practice; Commercial Real Estate Transactions; Organizing a Rhode Island Business; Probate and Estate Planning; Residential Real Estate Closings; Workers' Compensation Practice; Creditors' and Debtors' Rights: Federal Court Practice; and Administrative Law.

Barrington RI Real Estate Closing by Divorce Agreement

In a recent Barrington RI divorce and real estate matter, we represented our client as the seller’s agent at a real estate closing on the marital home, several months after the Final Judgment had entered. Our client had since moved out of state, and needed to appoint a Power of Attorney to attend the closing on his behalf. We also reviewed the closing settlement statement with regard to disbursement of the final proceeds. We were able to point out that overdue motor vehicle taxes should have been allocated to the ex-Wife’s portion, and that our client should not be responsible for those. This resulted in a savings of more than $800.00 to our client.

Kristy J. Garside, Esq.
Associate Attorney


If you are filing for divorce in Rhode Island, or need help with a real estate closing or transaction, contact The Law Offices of Jeremy W. Howe at (401) 841-5700.

Spouses of Military Members Need to be Proactive - We Can Help!

I have attached a recent section of a newsletter we receive from EX-POSE, "Ex-Partners of Servicemembers for Equality." They can be contacted at www.ex-pose.org or by phone at (703)212-6951.

The article suggests things that the spouse of a military member can do to be proactive in their situation. ALl of the suggestions may not be perfect in all situations, but it is important to take an active role in your case. Taking these steps can be crucial to getting a good result, quickly and efficiently.

Our office has more than thirty years of military experience, and can assist by answering questions, handling your case, and helping you to come out on the other side knowing you had all the information you needed to make informed decisions throughout the process.

We will also consult with you if you already have an attorney that you are comfortable with, but you and your attorney feel you are not as familiar with military benefits as you should be in order to make educated decisions.

***THE MILITARY PENSION IS TYPICALLY THE LARGEST MARITAL ASSET TO BE DIVIDED AND MOST ATTORNEYS ARE NOT FAMILIAR WITH THE PENSION OR ITS VARIOUS DIMENSIONS.***

STARTING THE JOURNEY OF DIVORCE

Once you are aware that your marriage is not going to continue, the questions will start. It is not unusual to be burdened with concerns for your future. First and foremost, DO NOT sign your name on anything that you have not read, understand fully, consulted with your lawyer, and read again. This includes, but is not limited to, tax returns, titles or deeds, investments, life insurance forms, bank accounts, and survivor benefit plans.

It is in your best interest to interview at least three lawyers and find the one that best fits your needs. Be sure that he/she understands military divorce and what that involves. This means that you should have some knowledge of what your benefits and interests are concerning health care, child support, SBP, and property. Don't move out of your home before consulting with your attorney. This could be construed as abandonment. If you are in an abusive marriage, your attorney will be able to advise you.

Use your time to compile monthly bank statements and make copies for your attorney. Locate all tax returns filed jointly or separately and make copies. Be sure that all of the taxes have been paid up to date. Go to your bank and be sure that all of your accounts are intact, check on your safe deposit box (if this applies), be sure that documents have not been removed and make copies of anything you think is relevant. If you have joint accounts, ask the bank manager if you can have the accounts "flagged". This would make the provision that no large amounts are taken out or transferred without you knowing.

Tell your insurance agencies and be sure that the Beneficiary on all accounts has not been changed. Also, tell them to mark the accounts so that the beneficiary cannot be changed without your knowledge. Do the same for any investments and properties you may own.

I would also recommend making a list of all assets, income, and expenses. Ask your lawyer what documentation they need to prepare your case. The more you have, the better they can assist you.

Now, take a deep breath! The journey is not going to be an easy one but you are not alone.

EX-POSE, P.O. Box 11191, Alexandria, VA 22312-0191

Call us to schedule an appointment today, 401-841-5700 or email me at kgarside@counselfirst.com.

The Statement of Assets and Liabilities Needs to be Accurate From The Start.

As a family court practitioner, the statement of assets and liabilities has become an integral part of my intake meetings with clients. This statement is required to be filed with the family court for any matter. My clients are asked to complete a first draft with their "homework" and I use that draft for several things.

First, and most practically, I review the document for accuracy with relation to the family dynamics, the parties' employment status, the parties' occupations, and the number of dependents. I can tell relatively quickly whether a family is living beyond their means, and in what ways will things need to change in order to support two households.

When I receive the Statement from the opposing party, I use the document to determine what assets my client may not be aware of in the other party's control, and also what assets that party may not have listed at all or listed differently than my client.

In my opinion, it happens all too often that attorneys let clients complete the document, the attorney do not thoroughly review the document but files as completed by the client, and it later becomes an integral part of my cross examination later when issues become contested.

The document is signed by a party under oath, and it can used by the court as evidence. If a person over values or undervalues their assets, those incorrect numbers can be used against them later. These documents can be amended throughout the process, but an attorney should be very careful to make sure this document is done correctly the first time! As soon as something is filed, it is considered "fair game" when the battle begins.

Let us answer any questions you may have about marital assets and how those might be divided if you are considering divorce.

Law Office of Jeremy Howe Attorney Carlson to Speak at RI Forum on Aging Seminar

March 31, 2011 – Cranston, RI – Attorney Hilary Carlson, LICSW of The Law Offices of Jeremy Howe, Ltd. will speak at the RI Forum on Aging First Annual “Seniors Staying in Charge” Seminar. The seminar is scheduled for Thursday, March 31, 2011 at the Imperial Room on Rhodes Avenue in Cranston, RI.

When asked about her involvement in the program, Attorney Carlson remarked, "I am excited to be part of an event that provides important information to Seniors at no charge."

RI Forum on Aging is a state senior action network promoting responsible public policy for seniors in Rhode Island and nationally through an organized voice on federal and state public policy issues. A member of the National Council on Aging (NOCA) and is affiliated with the National Coalition of Consumer Organizations, (NCCO) a constituent unit of NCOA.The seminar will cover topics on Medicare and Social Security, Housing, Transportation, Food Stamps, and End of Life Planning. Reservations can be made by calling (401) 523-1679 or via email at RiForumonAging@gmail.com.

Child Custody Order: Toronto v. Rhode Island

Our office was recently hired to write a legal opinion letter as to whether a Toronto Ontario child custody order would be followed in the Rhode Island Family Court. Our opinion was presented to a Judge by the attorney for a mother (resident of Toronto) who wanted her aunt (resident in RI) to take custody of her daughter. We do not know how the case turned out, but we were glad to assist.

In the opinion, the answer could be found in the Uniform Child Custody Jurisdiction and Enforcement Act adopted by Rhode Island in 1997. The Act outlines what a court should do when there are multiple states involved with multiple orders.

This is not an uncommon concept given that people are much more mobile than they used to be. Family Court attorneys need to be aware of these rules in order to know whether a client is filing an action in the correct court. If the court does not have jurisdiction, and the attorney files anyway, there can be hefty penalties and sanctions to that attorney which can be awarded by the Judge to the opposing side.

A quick rule of thumb would be to look at what order entered first, and who still lives there. The original state always has jurisdiction until that court decides it does not, or all parties assent to a change. It is always a good idea to consult the Act again before making a determination.

If you have questions about whether your case can be heard in Rhode Island, please contact us at the Law Offices of Jeremy Howe, Ltd. We can help you save time and money by getting it right the first time!

Kristy J. Garside, Esq., Named to VNS of Newport & Bristol Counties’ Board of Directors

Portsmouth, RI – February 2011 -- Kristy J. Garside, Esquire of Tiverton, has been named to Visiting Nurse Services of Newport & Bristol Counties’ Board of Directors.

Ms. Garside is a graduate of the University of Massachusetts and earned her juris doctorate at the Roger Williams University School of Law. She is a member of the Rhode Island Bar Association, the American Bar Association, the Family Court Bench Bar Committee, the American Family Law Inn of Court (Rhode Island) and is an accredited attorney with the Department of Veterans' Affairs.

Ms. Garside is also a member of the Community Advocacy and Resources for Elders and Seniors RULE: Resources Unlimited and Liaisons for Elders, Newport Group.

Ms. Garside is an attorney with the Law Offices of Jeremy W. Howe, Ltd. in Newport, Rhode Island. Among her presentations are "Military Family Law Issues, Health Care and Retirement Benefits," for the Inn of Court; "Estate Planning and Long Term Care," for the Rhode Association for Deaf Senior Citizens; "QDROS: From A - Z, Food for Thought re: Avoiding Malpractice," for the Rhode Island Bar Association; and conducted the Rhode Island Bar Association's FREE Health Care Durable Power of Attorney Clinic in Newport at the Edward King House.

Pension Issues: Counsel First, Negotiate, then go on the Record!

I have recently been working on a case where we have agreed to draft a Qualified Domestic Relations Order for a client pursuant to her divorce.

Both parties are represented by attorneys, but the extent of the negotiation regarding the pension and the terms on the record were, "Wife is entitled to half." Unfortunately, this is extremely typical and very problematic. There are important additional aspects of the pension plan that were not addressed and could result in the former spouse getting nothing at all, and leaving them out may be considered malpractice.

In this case, the pension is a defined benefit plan, which means the employee will receive a fixed amount of money each month for the rest of his life based on his service and earnings when he reaches an eligible retirement age.

"Half" is insufficient because the employee has not yet retired, and there was no negotiation regarding "half of what?" The employee expects the Wife to get half as of court date, and the former spouse expects half of the whole thing. These parties will probably end up back in the courtroom, when they expect that the divorce has already been completed.

Additionally, when awarding an interest in the pension to the spouse pursuant to the divorce, ATTORNEYS MUST CONSIDER WHAT WILL HAPPEN TO THEIR CLIENT'S PORTION OF THE PENSION IF THE EMPLOYEE DIES. Death can occur before the employee begins collecting retirement pay, or after he or she begins collecting, and most plans usually treat the event differently. If the attorney puts no provision in the Orders regarding the former spouse's interest if the death occurs, he or she could be left with nothing!

If you getting divorced and you or your spouse have retirement plans, your attorney should be familiar with the type of plan and its provisions, as well as the ways in which it can be divided. If the attorney does not know about the plan, or does not even know the questions he or she needs to ask, then you or your attorney should call our office for a consultation.

Our attorneys can provide information, suggestions for discovery and language for court orders, or be hired to offer expert testimony in the event of contested issues.

We can be reached at (401)841-5700 or visit our website at www.CounselFirst.com for more information about our office.