What to Do When Divorcing But You Can’t Afford a Lawyer

My name is Linda. I am 40 years old. I have been married to my current husband for 15 years now, but we have recently agreed to separate and file for divorce. I intend to make sure that my interests are adequately represented in the proceedings so that I can get my just share of our conjugal assets. Unfortunately, I am afraid that I might not have enough financial resources to pay for a solicitor to represent me because all my assets are held in our home and family business that we operated together. I don’t want to take out a loan. Are there other options that I can pursue to have money to pay the solicitor?

According to Brookman Solicitors founding partner Henry Brookman, it appears clearly that Linda’s husband exercises economic control over the marriage. This is dangerous assertion, as it makes Linda believe that she has no power to demand for divorce terms other than the settlement that her husband is offering.

What Linda doesn’t know is that her husband is legally obligated to support her. Such support, given the circumstances, necessarily includes paying her solicitor fees.

The courts have time and again emphasized that equal access to justice covers the requirement that every party to a controversy must be given proper representation.

To enjoy this legal right, Linda has to provide the court with evidence to show that she has no financial capacity to pay her legal fees, and that she no other reliable source of income or funds such as the possibility of contracting a litigation loan.

This may entail exhibiting before the courts that Linda is unable to meet the repayments for a previous loan as they fall due, or that she stands to lose her house to creditors—indications that any litigation lender is not likely to approve her loan application, if she decided to apply.

If the court finds sufficient evidence to prove that Linda has no sufficient resources, it can issue an order for the husband to provide maintenance pending suit. By virtue of this order, Linda can be assured that her husband will pay for the proceedings, including solicitor fees, until the divorce decree is granted.

These orders are typically enforced through installment payments, although they can also be required to be paid by straight lump sum.

The court is free to take the actual costs into consideration at the final hearing for the purpose of reconciling them and making sure that both Linda and her husband have been paid their own costs.

Aside from requesting the court for a maintenance order, there are no other reasonable options available for Linda. Solicitors may be public servants, but they are not allowed to render their services based on a “no win, no fee” when it comes to divorce proceedings.

Sometimes, though, law firms may agree to work and put off billing until the settlement has been paid. Unfortunately, law firms are now required to remit taxes while they perform the service. This means the solicitor will have to shoulder their taxes themselves, which they are unlikely to agree to do.

Based on her account, it also appears that Linda could be ineligible to receive legal aid because she owns business assets. In case she does qualify, it is also highly unlikely that any solicitor will agree to work for her given that the legal aid rates are incredible low.

If Linda’s joint business with her husband is not substantial, then Linda may explore the option of securing a litigation loan from certain banks that offer them.

The first step that Linda should take is consult with her solicitor to discuss possible options for financing the litigation. In which case, she may need to raise the money to pay for the initial interview.

The Definitive Guide as to Why You Should Get a Prenup

At weddings, I’m probably the least romantic person around. While others want to give gifts of silverware and china and offer trite, folksy wisdom like “Never go to bed angry”, I’m the guy offering up good, solid advice like “Always have a safe word!” and, on the subject of this post, “You really should get a marriage contract in place!”. I once wanted to give a gift certificate for a prenup as an engagement party gift, but dear wife convinced me that it was “tacky”. Whatever.

I’ll be the first to admit that discussing a marriage contract (popularly known as a prenuptial agreement, antenuptial agreement, or premarital agreement and commonly abbreviated to prenup or prenupt) is about as fun as dental surgery. For many people, talking about a prenup feels a little too much like making funeral arrangements at a baby shower, but having that awkward conversation in the beginning can save a huge amount of frustration, anger and money down the road.

First, let’s get the “it’s not romantic” garbage out of the way- unless you’re having some new age, hippy dippy, granola, tree planting wedding under a canopy of lavender and choose not to register it with the state, marriage is a legal and civil arrangement. Yes, it’s about love and all that jazz, but it’s also a union that is governed by the laws of Caesar and whether you like it or not, there are rules and regulations that come along with it. It is a contract. And the law is quite clear – you can set your own terms, or the government can set them for you. It’s your choice, but you’ve got to choose one.

So what are the default rules? It varies from province to province and state to state, but the fundamentals tend to be similar. This is how the biggest categories of assets are dealt with in my jurisdiction:

1. Marital property – by default, any property acquired during the marriage gets divided evenly. It doesn’t matter who paid for it or whose name it’s in, or if she’s a nag or he banged his secretary, everything gets divided equally. This can include investments, pension contributions, retirement savings, the car, the boat, the plasma TV, the cat and the dog. There have been a number of cases that have even recognized a degree or future earning capacity acquired during a marriage (such a medical degree or dental license) as an asset, entitling the other spouse to a significant future stream of income from that asset. It doesn’t just apply to assets either, as debts get divided the exact same way.
2. Family home – The family residence (or the “matrimonial home”, as we law folks like to call it) is usually a little bit different, as it doesn’t have to be acquired during the marriage to be divided- regardless of whether one person brought it into the marriage, it gets split 50-50. Recreational properties, such as a cottage or vacation home, can also fall within this category in some cases. Again, it doesn’t matter whose name is on the deed, or who paid for it.
3. Assets brought in by either spouse – the items brought into the marriage by either person are generally excluded from division, as long as they have been kept separate. The big exception is the family home, as mentioned above. However, any savings or assets that are intermingled after marriage will be treated as marital property, and any increases on things like investments count as products of the marriage.
4. Business assets – business assets owned by just one spouse are usually excluded from the normal matrimonial assets, meaning that they will not necessarily be divided equally. However, where the other spouse has made a contribution to the business- and this can be in the form of money, labour, even family support and child care- he or she may be entitled to a share of the business.
5. Inheritances and settlements – generally, money inherited or obtained in a legal settlement by one spouse during the marriage remains the property of that spouse, BUT ONLY if it is kept separate. This means in a separate bank account without the other spouse’s name on it- once it intermingles with the other assets of the marriage, it’s marital property. Similarly, if that money is used to buy a flashy new car or granite countertops for the kitchen, it has been mingled and will be divided equally.

In addition to the division of assets, on divorce the law provides for the possibility of spousal support payments (also called alimony) being ordered. If you don’t like paying for hubby’s expensive habits now, I can guarantee you that you won’t like it when he is shacking up with some hoochie across town.

For some people, this arrangement works just fine. Traditionally, when people often married younger with no real assets and partners played more traditional roles, this would have been a fair way to deal with things. Today’s reality is that many people are bringing substantial assets ands debts into a relationship, and these quickly intermingle to become joint products of the marriage. There are also often different expectations about what roles will be played in the marriage, and varying views on how joint assets should be split up. As a result, for many people it makes a lot of sense to set their own terms for the marriage, terms that make more sense for their individual circumstances. You can change just about any of the default rules, with one big exception- any provisions regarding custody of children or payment of child support will not be enforceable.

With this in mind, you should seriously consider a marriage contract if you fit into any of these categories:

• You’re bringing a house or other real estate into the marriage;
• You have children from a previous relationship;
• You have significant assets, savings, investments, or debts;
• You own a business;
• You stand to inherit a substantial amount of money;
• You plan to give up a career to raise children; or
• You will be supporting your spouse through advanced studies

If you think a prenup might be a good idea for you, start by talking to your partner. Admittedly, this is not a pleasant topic to discuss, but it’s not going to get any more pleasant if the marriage fails. Quite frankly, if you can’t have a reasonable and mature discussion about this topic, you probably shouldn’t be getting married in the first place. I know, I know- you really love each other and that will never happen to you. That’s what absolutely everybody says, and at least a third of them are wrong.

Once you have discussed the issue and have an idea of what you both want, you will each need an independent lawyer to help you draft and finalize the agreement. The cost can range from $300-$500 for a ridiculously simple agreement to several thousand for something fairly complex. Don’t wait until a day before the wedding, either- pressure like that could very well invalidate the agreement, and you’ve got more pressing things to worry about at that point anyway.

Finally, just because you’re already married doesn’t mean you have to miss out on the fun of telling your love that there’s no way in hell she’s ever walking away with your comic book collection- if you’re not married but are living with someone, you can get a cohabitation agreement in place to prevent any nasty arguing over who owns what. While the laws for common law partners are a little different than those for married couples, there is still potential for claims against the assets of the other than can be avoided with a good contract. You can also sign a marital contract at any time after you get married, and it can be changed as your situation changes. Nothing says “Happy 50th Anniversary” like a trip to the lawyer!

[thanks to mrmonochrome and money grubbing lawyer via cc]

Family Law Panel of Experts on Effects of Toxic Stress Related to Child Abuse

A recent panel of experts including Charles Nelson, the Richard David Scott Chair in Pediatric Developmental Research at Harvard Medical School, and Cindy Lederman, a judge of the Miami/Dade County Juvenile Court joined Harvard Law School (HLS) Professors Charles Ogletree, Martha Minow, and Child Abuse Prevention (CAP) Director Elizabeth Bartholet in exploring the short and long-term effects of toxic stress related to child abuse and neglect, parental substance abuse, maternal depression, and exposure to violence.

To frame the issue, Dr. Nelson provided the clinical background for examining maltreatment and neglect. “Early experiences have a particularly strong influence,” said Nelson, “Timing of abuse, the nature of it, and one’s genetic predisposition can be long-lasting due to fundamental changes in mental circuitry.” To illustrate his point, Nelson explained the findings of the Bucharest Early Intervention Project, a randomized trial of foster care as intervention for social deprivation associated with the institutionalization of nearly 200 children in Romania. “Due to negative experiences as infants, many of the children had stunted growth, anxiety disorders, and reductions in brain activity.” Nelson stressed that we must improve our understanding of the neurobiology of early adversity to improve the court’s understanding of neural plasticity… we must translate science to policy.”

Judge Lederman agreed with Nelson and admitted that the family law cases she sees involve, by and large, parents unengaged with and apathetic to their babies. “Mothers that come before me are there as a last resort; they don’t understand why their children have been taken away from them,” she explained. “We’re forced to make clinical and mental health decisions all the time. Dealing with the deterioration is not something they teach you in law school.” Judge Lederman insisted that to properly attend to the needs of children jurists must become students of the science of early childhood development.

Presented with the clinical side of child maltreatment, Professors Bartholet and Minow weighed in. “I see two very important policy implications arising from these social science findings,” said Bartholet. “It involves enabling as many parents as possible to be able to nurture and support their kids… and it further involves intervening early and coercively to place abused children under foster care.”

“We know that when the phrase ‘in the best interest of the child’ is uttered with a lawyer in the room that it’s already too late for these kids,” explained Minow. “We’re looking now for the least worst thing that can happen…time matters when you’re talking about kids, and new brain research can help us facilitate their well being.”

[thanks to ollie crafoord and harvard law school via cc]