Online Legal Divorce Forms and Separation Agreements - Privacy Problems

Last week, I wrote about the need to consult an attorney prior to using an online separation agreement or divorce forms.  This week, I’ll discuss another problem with these forms: Privacy.

I have seen many clients that use these forms without an attorney.  Most of these clients record their separation agreement, child custody (co-parenting) agreement or property settlement agreement with the Register of Deeds.  They do this because something in the online form, the form's instructions or something else on the internet told them that this recordation was necessary.

Unfortunately, once a separation agreement is recorded with the Register of Deeds, it becomes public record.  That means that anybody with a computer can easily look up, read and print your separation agreement if it is recorded with the Register of Deeds.  Anybody.  For any reason.  Friends, family, foes, members of your church, co-workers, etc…And I can tell you that people love to know the intimate details. Do you really want to give them access to that kind of personal information? 

There are some parts of a separation agreement and property settlement agreement that may need to be recorded with the Register of Deeds.  But, a good family law attorney can help you avoid making your entire agreement public knowledge.

I routinely advise clients to avoid this kind of public disclosure of their private lives.  After all, if you wanted the details of your separation to be public knowledge, then you could just go to court.  But, in North Carolina, there are ways to avoid making the terms of your separation public record. 

However, you would not know that unless you consulted a North Carolina family lawyer.

Online separation agreements and divorce forms can be useful.  But, there are risks in using these documents, and the loss of privacy is one of them.

Consulting a North Carolina family law attorney before using these online forms can save your privacy.



What's It Like to Go to Court? See For Yourself.

One of the biggest decisions that any family law client will have to make is whether they want to accept the negotiated resolution that is available or take their chances in court.

No one can make that decision for you. Your attorney should provide you with all of the information possible to help you make your decision. This includes talking about the strengths and weaknesses of your case, the judge's inclinations, and other factors that may influence the outcome.

However, no attorney can or should guarantee a particular outcome. So, there is always an element of risk in allowing your case to be resolved by a judge. One of the factors that has to be considered in your decision is whether you are willing to endure the process of a courtroom trial. A hearing or trial can be emotionally grueling. Further, the intimate details of your life will be on display for anybody that happens to wander into the courtroom. Many clients are surprised to find out that anybody can sit in the courtroom to listen to their case.

In order to get a true idea of what a domestic trial is like, I advise clients to take a day off and go to the family court in their county (In Wake County, family courts are located on the 9th floor of the courthouse). If you go, you should watch a hearing or a trial. That, in turn, will give you the best idea of what it will be like to go through a trial in your case. And, more importantly, it will give you a very good idea of whether you want to push your case to court, or resolve it through negotiation.

If you are interested in legal representation, please contact me by email or at (919) 781-1311. You can also find me at www.nichollscrampton.com (this site currently being updated).

Please note that nothing on this blog should be considered legal advice and that viewing the information on this blog does not create an attorney-client relationship between us. You are advised to consult with an attorney to confirm the current state of any legal information contained in this blog, as the law constantly changes.

How to Prepare for Your First Meeting With Your Lawyer

Many clients are completely overwhelmed by their first meeting with a family lawyer. They are frequently emotionally distraught by the potential end of their marriage, scared by the possibility of losing control over their children, afraid of their economic future or all of the above. Thus, many people are unprepared for their initial conference with an attorney. This leads to an inefficient use of time with an attorney, and wasted money. I have found that having specific tasks helps clients focus on resolving their problems and lessens anxiety about the unknown future. Further, being prepared for your meeting with an attorney saves money in two ways: The attorney spends less time mining you for information, and you will have done much of the work that you would have paid the attorney to do for you. Following these five steps in preparing for your first attorney meeting will save you time, money and probably some anxiety as well:

1. Create a Budget: In the event that you are going to be separated from your spouse, you need to know how much money you need to survive until the financial issues are resolved. This requires a budget. If a lawsuit is filed, you may very well be required to submit a budget to the court, so you might as well get started on this right away. You should include every monthly expense that you incur in your budget. If you incur a cost quarterly, then divide the total annual cost by 12 to obtain a monthly amount. You may have to estimate things like rent and utilities if you are still living in the marital home. The legal form that attorneys in Wake County use to submit budgets to the court can be found here. This form provides a useful guide to budget items that may not occur to you.

2. Create a List of Assets and Debts: Having an inventory of assets and debts is absolutely crucial to your ability to make educated decisions about dividing marital assets. Do you know what your net worth is? Do you know whether you have more assets than debts? Include homes, vehicles, art, collectibles, retirement accounts, bank accounts, insurance benefits, stocks, bonds, business interests and other assets. You do not necessarily need to inventory the silverware, dishes, linens and other smaller items unless they are especially valuable. Also include all debts including credit cards, loans, mortgages, credit lines, equity lines and other financial liabilities. You can find a fairly extensive list of assets on this form. Having a list of assets and debts (and when possible amounts for each) will save your attorney a lot of time, and you a lot of money. It will also help you and your attorney formulate a strategy for resolving your case at an earlier stage.

3. Estate Planning Issues: Review your papers so that you can inform your attorney of any Wills and Powers of Attorney that you have created. If possible, have copies of those documents for your attorney. Your attorney will want to discuss these documents with you. Also, tell your attorney if your spouse is designated as the beneficiary of any insurance policies or financial accounts. Identifying these issues will prevent your attorney from having to dig for this information later. Again, this saves you money in legal fees.

4. Organize Your Documents: You will probably encounter a lot of paper while you create a budget and a list of assets and debts. As you find this paperwork, organize it by account/asset/debt and statement date. Even if you don't bring these documents to the first meeting, you will need them eventually. Lawyers and paralegals spend untold hours digging through boxes of random unorganized documents supplied by clients. If you can organize the documents as you go through them, you will save a lot of money in legal fees. And, you will have a much clearer view of your own financial picture.

5. Make a List of Questions for Your Attorney: No matter what you do, you will likely be emotionally charged during this first conference. This causes clients to lose their focus and forget to ask the questions that they really want answered. So, make a list of your questions before you arrive for the meeting. Using this list, you can make sure that you leave your meeting with the information that you were seeking.

If you take all or even some of these steps prior to meeting with an attorney, then you will be much better prepared to get what you need out of that meeting. If you are going to be divorced, you will need to take charge of your own financial life. This is the first step in that process. Even if you reconcile (and I hope that you do), many clients find that taking these steps opens their eyes to their real financial situation. And, you will have saved thousands of dollars in legal fees by doing the grunt work yourself.

If you are interested in legal representation, please contact me by email or at (919) 781-1311. You can also find me at www.nichollscrampton.com (this site currently being updated).

Please note that nothing on this blog should be considered legal advice and that viewing the information on this blog does not create an attorney-client relationship between us. You are advised to consult with an attorney to confirm the current state of any legal information contained in this blog, as the law constantly changes.

Is Your Lawyer a Skilled Negotiator?

If you are in the market for an attorney to help you with a family law matter, then you need to make sure that the attorneys you are considering are skilled negotiators. This is true for alimony, post-separation support, child custody, child support, equitable distribution and other types of family law cases. One of the little known secrets about the legal profession is that at least 50% of what a family lawyer does in a day consists of negotiation. That being the case, having a skilled negotiator as your attorney provides you with a greatly increased chance of resolving your case without the time, expense and emotional trauma of going to court. A good family law attorney should also be experienced in the court room and be willing to pursue a case in court if necessary. However, I strongly believe that an attorney should not counsel a client to allow a judge to make decisions for their family unless and until the attorney has done everything they can do to reach an agreed resolution outside of court. Going to court takes all control out of the hands of the client and puts it squarely in the hands of a judge that knows neither the client, nor the client's family.

Therefore, having an attorney that has actual negotiation skill (as opposed to just experience) is crucial to obtaining the best possible outcome in your case. Many attorneys have experience negotiating. Some have been doing it for decades. But, do not confuse experience with skill. Skill requires possessing knowledge of specific negotiation techniques and strategies. Experience requires neither technique nor knowledge. Acquiring skill as a negotiator requires obtaining training in the many types of negotiation settings (mediation, collaborative law, direct negotiation between attorneys, etc...). It further requires that attorneys obtain training on specific skills such as how to deal with cooperative negotiators, aggressive negotiators, difficult negotiators and unskilled negotiators. It also requires that the attorney study his her own personality and negotiation style to pinpoint their own strengths and weaknesses. Only then can the attorney capitalize on their strengths and bolster their weaknesses. Few attorneys actually obtain training in negotiation and therefore few attorneys actually possess the skills necessary to obtain the best result in your case. Instead many simply rely on their "experience" or "gut", instead of skill, in trying to resolve your case. This leads to a premature breakdown of negotiations, an increase in hostility and a stranger making the rules for the intimate details of life for you and your family.

If you are looking for an family law attorney, I encourage you to inquire into that attorney's specific training in negotiation. Don't rely on their experience alone to help you resolve your case.

Tre' Morgan is an experienced family law attorney with extensive negotiating training and education to help you obtain the best possible outcome in your case. He is a North Carolina Dispute Resolution Commission Certified Mediator, has trained in the Collaborative Law process and has studied and is trained in numerous other negotiation skills and techniques. He continues to actively supplement his negotiation skills through education, training and daily negotiation in family law cases.

If you are interested in legal representation, please contact me by email or at (919) 781-1311. You can also find me at www.nichollscrampton.com (this site currently being updated).

Please note that nothing on this blog should be considered legal advice and that viewing the information on this blog does not create an attorney-client relationship between us. You are advised to consult with an attorney to confirm the current state of any legal information contained in this blog, as the law constantly changes.

The Six Ways to Dissolve a Marriage

One of the most prominent myths that new client bring to an initial meeting is that getting divorced means going to court. That is not true. In North Carolina, it is entirely possible to get a divorce and resolve the related legal issues of a divorce without ever stepping foot in a courthouse. While only a judge can divorce a couple in North Carolina, the legal issues surrounding a divorce (financial support, property division, co-parenting) can be resolved in at least six different ways.

Couples can resolve these issues through direct negotiation, Collaborative Law, attorney negotiation, mediation, arbitration or litigation.

I have listed these options in descending order of client control; that is, the client has the most control over the outcome in direct negotiation with their spouse/ex-spouse and the Collaborative process, and the least control over the outcome in arbitration and litigation.

Direct negotiation occurs when the parties simply try to resolve their legal issues themselves without the help of attorneys, judges or other third parties. Most couples are unable to do this effectively because of the emotions involved and the lack of substantive knowledge about the issues at hand. Even couples that are able to effectively negotiate with each other face legal traps that can present problems. Direct negotiation has the advantage of placing control over the outcome the parties' hands. But, its disadvantages typically make it impractical or impossible.

Collaborative Law is very similar to direct negotiation in that is places almost all of the control over the outcome in the hands of the parties. But, it has distinct advantages in that it involves attorneys and other experts that have the substantive knowledge of the law, finances, taxes and other areas necessary to fully address the issues. And, the Collaborative process provides a structure for the negotiations so that the parties can communicate more effectively. In addition, Collaborative Law is generally less expensive than the other options. Perhaps most importantly, the Collaborative process teaches the parties to communicate in a productive, respectful and reasoned manner. This benefit cannot be overestimated, especially for clients that will be co-parenting children in the future.

One of the most historically popular means of resolving a case is through attorney negotiation. In this process, each party hires an attorney to negotiate for them. The lines of communication between the parties is broken by the attorneys. Each party provides directives to their attorney. The attorneys then negotiate with each other on behalf of their clients. Because the attorneys are communicating, and not the clients, the parties lose some control over the end product. Tone, emphasis and other important aspects of the clients communication get lost by the time it reaches the opposing attorney's ears. And, because attorneys are involved, the cost of each email, letter and phone call increases the cost to the parties. Further, this process does not teach the parties to communicate effectively because they are using their attorneys to communicate for them.

Mediation was the first attempt to reduce the amount of litigation in family law and divorce cases. This process remains very popular today, and is mandatory for many cases filed in North Carolina. Mediation involves a conference in which the parties and their attorneys meet with a "mediator" to try to reach a resolution of the legal issues. The mediator is typically another independent attorney. Mediation places most of the control over the resolution in the hands of the party. In fact, no one is required to agree to anything at mediation. However, typically, the attorneys and the mediator conduct most of the negotiation at mediation. The mediator's role is to help encourage the parties to resolve the legal issues by pointing out the benefits of a settlement and by pointing out the strengths and weaknesses of the parties' arguments. The mediator does not and cannot decide anything for the parties. While mediation is a vast improvement over litigation, it still involves indirect communication between the parties. Therefore, it does not teach the parties to communicate with each other. While mediation can and frequently does solve the immediate legal issues, it does not lay the foundation for productive future communication between the parties. In fact, mediation typically involves the kind of strong arm negotiating tactics that create bitterness and resentment.

Arbitration is essentially an informal trial. Instead of a judge, a neutral third party (usually an attorney selected by the parties) makes decisions for the parties. This process is designed to save a lot of the time and expense involved in a formal court case. Arbitration is a good option when the parties are totally unable to communicate, but do not want to spend the time and money that a court battle requires. However, arbitration take control over the resolution out of the parties' hands, and places it in the hands of the arbitrator. The arbitrator does not know the parties, their children, their history, their personalities or any of the other things that should be considered in resolving family disputes. The arbitrator only knows the facts that are presented in the hearing. Like litigation, a stranger makes decisions for the parties and their families.

Litigation takes control of both the resolution and the process out of the parties hands and places it in the hands of another stranger, a judge. No matter how well educated, experienced or well meaning a judge, the judge is still a complete stranger to the parties and their family. Further, the judge's main concern is fairness, as opposed to what works best for a particular problem. A judge has at most a few days to learn everything they can about a family before making a decision. In my experience, even the "winners" in these cases leave the courtroom unhappy because of the inconvenience and disruption that a judge's decision creates. The only benefit to litigation is that a decision is made and the process (usually) comes to an end. Litigation leaves attorneys wealthy, clients poor and families unhappy.

A very small percentage of my clients choose litigation or arbitration to resolve their family law issues when they are presented with the above options. Most choose attorney negotiation or mediation. However, a growing number of people across the country are choosing Collaborative Law, and reaping the long term benefits of their decision.