Unemployment Benefits Until March

The Temporary Payroll Tax Cut Continuation Act of 2011 was passed this month by Congress, and the Emergency federal benefits for the unemployed, which were scheduled to expire on December 31, were extended for two months.

The legislation will need to be revisited by March, but for those of you who received a notice and expected your benefits to end as of January 1, 2012, you now have a bit of a chance to re-group in the event the checks will stop coming as of March 1, 2012.

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.