Tuesday, June 26, 2012

Why your Attorney may act Differently at Mediation

Lawsuits are stressful. If you are involved in one, you already know that.  There is often a lot at stake, whether it is business profits or the best interests of children.  

If you are involved in a suit and have an attorney to represent you, you may be used to hearing your attorney defend you quite aggressively.  Your attorney has probably gone over your case with you and been honest with you about the negatives and positives of your case. Then s/he has probably gone on to a strong defense of your position verbally, in writing, and in court.

When parties go to mediation (either voluntarily or by court order), a client can be surprised to see his/her attorney acting differently.   That is because mediation is different from court hearings.  In court hearings, the two (or more) parties each aggressively present a case to a judge, trying mightily to persuade the judge of each viewpoint. Then the judge makes a decision which everyone must respect and obey, like it or not.

In mediation, the mediator is an impartial party.  S/he does not need to be persuaded of the “rightness” of your position. The mediator is there to facilitate a settlement and help the parties discover whether or not there is any common ground.  

Therefore, it is uncommon to see an attorney appear at mediation with all of the charts and exhibits that would make an appearance at trial.  There will not be a parade of witnesses.   There will not be (hopefully) a lot of raised voices, posturing and demands.  This is not the place.  This is the place for a realistic assessment of the case, honesty between client and lawyer, and the help of a trained professional to guide the parties in determining where things stand.  

While attempting mediation may be required, a settlement is not required. No one will force the parties to agree to something that they cannot agree to.  Therefore, mediation may not be successful, in which case, the lawsuit proceeds. 

If you are a party to mediation, it is helpful to really understand the process and go into it with the proper mindset.  Then it will not be a waste of time, even if a settlement is not reached.

Kalish Law Office 281-363-3700 Serving Texas families and businesses since 1984.

“Passionate, Professional and Personal. Since 1984.”  The Woodlands, Texas

Monday, June 18, 2012

Protect your Business' Privacy online

If you are a business owner, it is important to protect not only your personal privacy, but also your business privacy online.  

Don't post anything that could be a gold mine for a rival, enemy, staker, burglar or identity thief.   In particular, it is never a good idea to post your frustrations about your customers, clients or co-workers (even if you think they'll never see it).   Don't advertise when your home or business will be vacant and vulnerable.  Don't put up information that could assist someone to steal your identity, or pretend to be an agent of your business.

This month (June 2012), Consumer Reports has an excellent article about privacy on the internet, particularly when it comes to Facebook.   As the article says, "Think before you post!". As a business owner, you should consider the reputation and security of your business as well.

Kalish Law Texas, The Woodlands, Texas - Representing Businesses and Families since 1984

Protect your Business Privacy Online

If you are a business owner, it is important to protect not only your personal privacy, but also your business privacy online.  

Don't post anything that could be a gold mine for a rival, enemy, staker, burglar or identity thief.   In particular, it is never a good idea to post your frustrations about your customer, clients or co-workers (even if you think they'll never see it).   Don't advertise when your home or business will be vacant and vulnerable.  Don't put up information that could assist someone to steal your identity, or pretend to be an agent of your business.

This month (June 2012), Consumer Reports has an excellent article about privacy on the internet, particularly when it comes to Facebook.   As the article says, "Think before you post!". As a business owner, you should consider the reputation and security of your business as well.

 

 

 

Guard your Privacy online

It is important to be careful to guard your privacy online.   If you are a business owner, you must be careful with what you post online about your business, as well as your personal life.  According to Consumer Reports, enemies, criminals, rivals, employers, insurers, and some governmental agencies view social networks in order to gather information.  

Sharing too much or sharing the wrong things are mistakes that can be costly.   You should not share interoffice conflicts or business, or post your frustrations about your clients, employees or co-workers. 

Also be careful of posts which tell or show where you are, and when you are there.  This can be a gold mine for thieves, stalkers, or others seeking to exploit information for their own benefit.

The June 2012 issue of Consumer Reports has an excellent article that I highly recommend. 

Monday, June 11, 2012

What Everyone Should Know About Texas Wills and Estate Planning

What’s the first thing that you think of when someone asks you why you should have a will or estate plan in place?    “To protect my family”, someone might answer.  “To name a guardian for my child,” someone else might say.   Someone else might answer, “My attorney helped me with a combination business plan and estate plan so that my personal assets were protected and separate from my business assets.”

All of the answers are correct!  Here are the main reasons why it is important to plan:

1.       So that spouse/family/domestic partner/ friends/ charity will inherit from   you

2.       So that your beneficiaries can get valid legal title to your property

3.       To allow you to distribute your property as you see fit, to whom you see fit

4.       As part of an overall asset protection plan

5.       To choose a guardian for your minor children

6.       To minimize tax consequences for your beneficiaries

7.       To provide for the continuing needs of a family member by use of a trust

A will or estate plan may have several goals, and it is important that the overall plan is consistent with those goals. 

Whether an estate is very large or very small, there are very good reasons to have a valid will and to be certain that the proper legal procedures are carried out in order to transfer the title to the property when someone dies.   In some cases, real property is “informally” passed along, with the family agreeing on who lives in the property and pays the monthly bills. Several years later (after many of the original heirs have died and there are 2 or 3 generational levels to deal with) the family may want to sell the property.  At that point, it can be complicated to determine legal ownership, locate everyone and complete all the documentation that results in the property sale and distribution of funds.  In this case, the family saved legal fees in the past, but may pay quite a bit in legal fees and costs later on.  

However, it is important not to create a complicated plan when a simpler one will do!  If a simple will meets the important goals, that’s what should be used!  An estate planning attorney give you advice as to the best and most efficient plan to use, and can also review current documents and tell you whether it is advisable for you to update them.

Kalish Law Office, The Woodlands, Texas  Probate and Estate Planning Attorneys

“Passionate, Professional and Personal. We Make the Difference.”  Since 1984

281-363-3700  www.kalishlawtexas.com

Friday, June 8, 2012

Problems with Splitting Retirement Accounts After Divorce?

We have gotten questions about retirement fund issues after divorce from some of our blog readers. 

Retirement fund issues can be difficult.   The final divorce decree will state how the property and debts are to be divided.   However, when it comes to retirement accounts, additional paperwork must be done in order to actually divide the accounts.   This paperwork is in the form of another “order” that must be signed by the judge.   This is commonly called a “Qualified Domestic Relations Order” (or QDRO). 

Ideally, the procedure will go as follows:

1.       The divorce is filed

2.       The final decree of divorce is written, detailing how debts and assets (including retirement accounts) are to be split.  The judge signs it.

3.       The Plan Administrator of the retirement account is contacted to find out the proper procedure and recommendations for that particular company’s QDRO.

4.       The QDRO is drafted by a company or an attorney.  The parties and their attorneys review and sign it.

5.       The QDRO is submitted to the court and the Judge signs it.

6.       A certified copy of the QDRO which was signed by the Judge is submitted to the plan administrator.

7.       The Plan administrator decides the QDRO is acceptable.

8.       The funds are split.  But, depending upon the plan may not be immediately accessible.
 

However, problems can arise along the way as follows:  

 

1.       The spouse who owns the retirement account may refuse to cooperate with giving information about the Plan, slowing things down.

2.       The parties may not agree about who is to pay for the drafting and processing of the document.   (This is not automatically part of divorce services performed by lawyers, and can be quite an involved process).

3.       The spouse who owns the retirement account may refuse to sign the paperwork, having no incentive to cooperate

4.       The Judge may have a problem with the paperwork, or the court may be backlogged

5.       The QDRO may sail through approval of the former spouses and get the judge’s signature, only to be turned down by the Plan Administrator. The paperwork will then have to be re-done.

6.       The QDRO may go through all the steps above, but then the company or the Plan has a bankruptcy, liquidation, or other financial issues.

 

In the event of an ex-spouse who simply refuses to sign a QDRO, it is possible to request that the court approve the paperwork without that person’s signature (certain legal procedures must be followed).

Generally the spouse who is the owner of the account has very little incentive to put the time and money into making sure that the QDRO is done.   Therefore, if you are the party who is going to be awarded part of your spouse’s retirement upon divorce, you should be aware of that and plan to “take the lead”  in getting this paperwork properly done and submitted, as well as budgeting for it.    A consultation with a divorce attorney who is familiar with these issues can help you understand all of your options and legal rights.