Affordable Care Act, Small Business and Self Employed

http://www.denverelderlaw.org/wp-content/uploads/2012/03/Barb_Cashman.jpgHere is an interesting article in which Barb Cashman, Esq interviews Shira McKinley, Esq on the pros and cons of the Affordable Care Act for small businesses and self employed people.

http://www.denverelderlaw.org/the-affordable-care-act-aca-and-the-self-employed-or-small-business-owner-interview-with-shira-mckinlay-esq/

Ways to work with a Certified Divorce Financial Analyst

The Certified Divorce Financial Analyst qualification and role were created to help people going through divorce make better financial decisions.  Many people going through divorce were having difficulty understanding the impact that their decisions were going to have on their future financial situation.
These financials decisions are made whether one is negotiating their own divorce, working with an attorney in a mediated settlement, or unable to agree and having to have the Court make their decisions for them.

There are a number of ways to work with a Certified Divorce Financial Analyst.

1.  Bringing Clarity to Chaos A key way to use a Certified Divorce Financial Analyst is to go alone or with your spouse to just get a clear picture of the financial situation and what the effect of a divorce will have on each of you.  We take all the financial information and look at possible divisions of the marital estate, as well as future spending plans and after-tax cash flow analysis for both parties.  The goal is to see what your financial situations would really look like after the divorce and to help you come up with an agreement, or proposal, that will work for you both given your goals.

2.  Supporting you and your attorney in settlement conference or Court. A Certified Financial Analyst can take all of the financial information in your situation and come up with options and scenarios to help everyone see what possible options are that will lead to a settlement.  I have attended settlement conferences and mediations and using the financial modeling software run proposals and different settlement options so that everyone could see the implications of these options.  This has normally led to a settlement which both parties are satisfied with.   When we have not been able to reach settlement, this work can be powerful evidence as testimony at trial to influence the Judge’s decision on asset distribution and maintenance.  This can be useful whether you are the main bread-winner or the lower-earning spouse.

3. As a Mediator. My practice is focused on working with both parties as a mediator, helping them through all the issues of their divorce, but primarily on the financial issues.  (If there are difficult parenting issues, then I team up with parenting specialist-mediators to help with those issues.)  Using financial modeling tools designed specifically for divorce I can help parties to really understand, in practical terms,  the financial issues in their situation so that they can together make better decisions that they both think are fair and equitable. Many times parties (and their attorneys) who have held a particular position on maintenance, for example, realize that the position is unrealistic given all the circumstances and modify their position and come to an agreement with the other party. The expertise that I bring to the mediation allows me to offer ideas and suggestions to the parties to help them see possibilities for settlement that they may not previously have been aware.

Is Divorce Really a Legal Problem?

At the end of the divorce process, you end up with a legal agreement which is filed with the Court and can be enforced through the Court system, this does not mean that the divorce process needs to be a legal battle – unless you want to make it one.

Divorce is a life transition issue.  If you can agree on all the issues you need to agree on, and stick to your agreement, you don’t need to get involved in the legal system at all (except to file your agreement with the Court).

Most of the issues that need to be agreed on are practical issues.

  • How will you co-parent your children?
  • How will you divide your assets and liabilities?
  • How will you provide financial support to the lower earning spouse to help him/her become economically self sufficient?
  • How will you each provide financial support for your children (ie child support)?
  • What will you do with the marital home?

Many people are able to make these decisions with some guidance and support from professionals. They do not need, or want, a third party (the Court) to make their decisions for them.

The law is there to tell judges and magistrates how to make decisions when you cannot make them for yourself.  Thus, attorneys need to know the law so they can argue your case in front of them, and also guess how a judge or magistrate will apply the law to your particular situation.   If you both agree on the issues, you can decide what you want to decide without court involvement as long as it is in the best interest of your children and the agreement you come up with is not “unconscionable”.

Sometimes there is a power imbalance between the parties or one of the parties is not able to fully participate in the decision-making conversations.  In these cases, having collaborative attorneys assist with the negotiations can help you get agreements that will be fair and work for you both.

Of course, if you are trying to punish the other person, the other person is just unreasonable and will not compromise, or if there is not full disclosure of all the information, then you may not have any choice but to use the Court system.

Different approaches to divorce

Many people advise their friends and relatives when they are facing divorce to “go get an attorney”.  This is understandable as often the emotions are running high, dreams and hopes have been dashed, anxiety is high about what will happen to the children and finances, trust and communication may be at an all time low, etc.  However, often it is sensible to do some research before rushing off to “have your day in Court”.
While there are many attorneys who will advise their clients on the different approaches to divorce (mediation, collaboration, cooperative, litigation, consultation v representation) and help them to work through their options and the costs and benefits of each (they have an ethical obligation to do so), unfortunately, there are attorneys who do not talk about options other than litigation and thus sell the potential client on a retained representation for litigation.  While there may be some situations that may only be resolved through a litigation approach, the vast majority of cases are not settled in the court room because the parties agree a settlement without the judge being involved.
Attorneys can be hired in two different ways.  They can represent you in your matter, or you can consult with them.  If they are representing you, they are managing your case and have a responsibility to you to help you achieve your objectives.  You will usually need to pay them a retainer if they are representing you.  If you are consulting with them, you are seeking their advice, but you are managing your own case.
Litigation may have benefits, depending on your situation. Your  attorney will take control of your case to gather all the information to make sure that your spouse is not hiding or misrepresenting anything, advise you on what you can expect as an outcome, help you to understand what is going on in the legal process, and represent you to your spouse, his/her attorney, and the Court to try to achieve your objectives in the divorce.  If there is abuse, a large power imbalance, complicated issues, lack of communication and trust, then often litigation is the only way to get the divorce finalized.
Litigation also has costs.  The very nature of the litigation process, the attorney’s ethical and professional  responsibilities to you as the client and to the court can increase costs rapidly at the beginning of the case in order to collect all the information that both attorneys need to get the case started.  If one of the attorneys (or their client) wants to be difficult (like filing a restraining order with little basis), this can escalate the conflict and the costs even more.  The very nature of the legal adversarial process, while designed to resolve conflicts based on law (and some say to find the truth and justice), can damage the relationship between the parents so much that it makes it very difficult to co-parent effectively.
For many people, however, they have made a decision to divorce, have put a high value on minimizing the damage to the children in the short and long terms, and wish to not damage their relationship further through the divorce process. Even though there may be some trust and communication issues, with some help they can work through their issues and come up with an agreement that works for them and their family.  They can be non-adversarial and try to reach an agreement that is satisfactory to both of them, rather than an “I Win, You Lose” result.  Just having this mindset when approaching divorce can save tens of thousands of dollars in professional fees.
Many people find that starting with a mediation process, in which they work with a neutral mediator and each party has an attorney with whom they are consulting, can be a highly effective and a relative low cost way to reach an agreement on even very complicated situations. During mediation, the mediator helps the parties to find their own solutions that will work for them.  Their attorneys may (but not necessarily) be present in person or by phone.   At minimum, the attorneys should be consulted close to the beginning of the case after the financial information has been exchanged between the parties, and closer to the end of the process when agreements are being discussed, but not yet finalized.  They should also review the Memorandum of Understanding (your divorce agreement) to make sure that it is written to reflect your understanding of the agreement.  (Note that this type of mediation is often quite different than a settlement conference, in which an attorney-mediator or retired judge will, in effect, evaluate your case and tell you what a judge would say if it went to court.)
If mediation is not successful in reaching a full agreement, then the parties can increase the involvement of attorneys through collaborative, cooperative or litigation models.

If more involvement of the attorneys is needed by the clients (who perhaps need more support due to a power imbalance or lack of trust), they can enter into a collaborative agreement with their attorneys. Collaborative divorce involves the attorneys agreeing with their clients that they will not represent them in Court, and will work in a collaborative and non adversarial way with the other party and their attorney.  Cooperative divorce is similar except that the attorneys have not agreed that they cannot represent their clients in court, but will try to work in a cooperative way to reach an agreement.  You can find out more about collaborative divorce at www.denvercollaborativedivorce.org.