Negotiated Settlements

Not all divorces are nasty and drawn-out fights. Some married people simply understand that they no longer belong together and are generally willing to work together to make the proper divisions and decisions so that a divorce can be completed and have it be valid under the general norms of San Diego family law. For those that are able to work through this process successfully, it could be helpful to work with a San Diego family lawyer to make sure that all of the customary components of a marital dissolution agreement are present so that there are no problems that arise when such an agreement is presented to the court.

Litigation

Despite the fact that litigating a divorce can be extremely costly, time-consuming, lengthy in duration and incredibly stressful, there are certain situations in which litigation is necessary. While this is generally the option that would hopefully be avoided, if the spouses simply cannot come to an agreement on basic tenets of their dissolution court can be unavoidable. When this situation arises, each party to a divorce needs to secure the help of an experienced San Diego divorce lawyer.

San Diego Divorce Mediation

The ‘middle ground’ that exists between a negotiated settlement and litigation is the process of San Diego divorce mediation. This process involves many of the same steps included in a negotiated settlement, but it also includes the involvement of a San Diego divorce mediation professional who helps guide this process towards completion in an objective manner. Mediators are just as skilled in terms of their role in a divorce as a San Diego divorce lawyer is when it comes to litigation, and their job is to help bring about a resolution to the estate and the marriage such that both parties feel that the agreement is fair.

Overall, there are different directions in which ending a marriage can proceed. If you’re thinking of how you should go about completing this always-difficult process, contact the San Diego family lawyers at Scott Family Law today to schedule an initial consultation.
When people are faced with the prospect of ending their marriage, they are often overcome with several different emotions. Regardless of the specific mix of emotions felt by any individual, it’s difficult to make sound, logical decisions when mired in this mental state. Therefore, a brief explanation of San Diego family law may help those who are in the process of making these decisions move forward with more of a foundation of knowledge and more of a sense of reassurance. Below are three options that could be available to those who want to end their marriage and to move on with their lives.

Negotiated Settlements

Not all divorces are nasty and drawn-out fights. Some married people simply understand that they no longer belong together and are generally willing to work together to make the proper divisions and decisions so that a divorce can be completed and have it be valid under the general norms of San Diego family law. For those that are able to work through this process successfully, it could be helpful to work with a San Diego family lawyer to make sure that all of the customary components of a marital dissolution agreement are present so that there are no problems that arise when such an agreement is presented to the court.

Litigation

Despite the fact that litigating a divorce can be extremely costly, time-consuming, lengthy in duration and incredibly stressful, there are certain situations in which litigation is necessary. While this is generally the option that would hopefully be avoided, if the spouses simply cannot come to an agreement on basic tenets of their dissolution court can be unavoidable. When this situation arises, each party to a divorce needs to secure the help of an experienced San Diego divorce lawyer.

San Diego Divorce Mediation

The ‘middle ground’ that exists between a negotiated settlement and litigation is the process of San Diego divorce mediation. This process involves many of the same steps included in a negotiated settlement, but it also includes the involvement of a San Diego divorce mediation professional who helps guide this process towards completion in an objective manner. Mediators are just as skilled in terms of their role in a divorce as a San Diego divorce lawyer is when it comes to litigation, and their job is to help bring about a resolution to the estate and the marriage such that both parties feel that the agreement is fair.

Overall, there are different directions in which ending a marriage can proceed. If you’re thinking of how you should go about completing this always-difficult process, contact the San Diego family lawyers at Scott Family Law today to schedule an initial consultation.

If you are considering a civil union, there are some facts you should know about California family law and matrimonial law.

A civil union is a legally recognized union between parties of the same sex. In California, a civil union is called a domestic partnership, instead of a civil union. A domestic partnership may also refer to a registered domestic partnership between certain heterosexual couples where one or both partners are over 62.

Domestic partnership registration

A San Francisco family law firm can help partners start the process for their civil union. Under the California Family Code §297, partners file a Declaration of Domestic Partnership with the Secretary of State. In order to be eligible for a domestic partnership, both persons must:

- Not be married to someone else or be a partner in another domestic partnership which has not been ended, dissolved, or annulled.
- Not be blood related according to stipulations that prevent marriage for related persons.
- Must be 18 years of age.
- Must be capable of consenting to the domestic partnership.
- Be of the same sex (unless applying for a heterosexual domestic partnership which has other qualifications).
- Share a residence in common. The residence does not have to be titled in both of your names. A partner may also have an additional residence aside from the shared residence. If a partner leaves the common residence, but intends to return, the residence is still considered to be a residence in common.

Partners receive a copy of their declaration and a certificate of registration, once the partnership is approved.

Expanded legal rights for California domestic partners

Rights for partners in California civil unions or domestic partnerships have been expanded since first recognized in 1999. At one point the California Supreme Court ruled granting same-sex marriage in California; however, in 2008, same sex-marriage was defeated at the poles through Proposition 8. The expanded rights of same-sex partners remained unaffected. Same-sex partners enjoy almost all of the same rights as married couples. Some expanded rights include:

- Tax benefits
- Health care visitation and emergency rights
- Rights of step-parent adoption
- Employment benefits for partners
- Right to sue for wrongful death

Guidelines Based Purely on Income Can Be Harsh

San Diego family law attorneys who have experience with high income cases understand that when it comes to the financial implications of these situations, the statutory language that governs them in California can lead to extremely harsh results. Generally, issues including property and asset division, spousal support and child support are broken down by relatively basic equations. While this makes sense for most cases, it can lead to inequitable results for those with high incomes.

San Diego Family Law Attorneys Can Help Work Towards Equity

Anyone who works through a divorce will generally state that they want the resolution to be fair for all parties. While people’s definition of ‘fair’ can be different in any situation for any person, James D. Scott has literally written the book on how to handle these issues. The book, entitled 100 Favorite California Family Code Sections and 105 Laws of Evidence, is used as a reference by San Diego divorce attorneys and family law professionals all over California. High income divorce cases are featured in this book, and it encompasses the general approach used by the Law Offices of James D. Scott.

Examples of Professions that Lead to High Income Divorce

There are certain professions and positions that tend to lead to high income divorce cases, and these include professional athletes, top-level executives of major companies and high-level medical professionals just to name a few. Not all San Diego divorce attorneys have experience with these types of cases, and if you work with us we will closely analyze your situation based on our knowledge to work towards a solution for everyone that’s fair and equitable.

If you earn a high income and you need the help of a San Diego family law attorney to dissolve your marriage properly, contact the Law Offices of James D. Scott today to schedule an initial consultation, as the firm has been helping clients work through high income divorce cases for many years.

Marital property is considered to be any property or debt that was built up during the marriage. This also means any property profits or losses. Separate property consists of property owned before marriage including allowances or birth rights that were granted to you as an individual. Individual property should be detailed in a prenuptial agreement that will keep it secured regardless of the circumstances of the marriage.

Property arrangements are often resolved between the two of you. If you reach an agreement you will sign a binding certificate called a marital settlement agreement. Alternatively the superior court will award the property by the decree of divorce. Whenever the two of you cannot agree to a settlement, the court has specific processes it uses to divide the assets. Discovery process is used to decide what assets and debts are included in the marriage. A dollar value will then be assigned to each asset and debt. You should know that state family law includes equitable distribution for assets. Equitable distribution occurs when the judge uses certain things to determine how the property will be distributed fairly but not necessarily equally. These types of factors include income, age, and who is responsible for the children.

To receive a fair settlement and in order for your lawyer to be most effective, you need to know all your investments and whether they are marital or separate. Being able to define this for your attorney will make their job much easier and they can focus on more important things like filing all the documents and determining any course of action necessary. It is best to try to settle with your spouse so you can both get what you want or receive compensation. Otherwise a judge will do this for you and the decision could be crushing.

Each US state has a specific set of rules and regulations regarding a divorce case. These outline the requirements for filing such a case, grounds on which divorce could be filed, primary documents necessary, property distribution, spousal support, child custody and child support and so on.

In Nevada you need to provide proof of residency before filing for a divorce. Only if one of the spouses is a resident of the state or has lived in Nevada for at least a period of 6 weeks you can file for a divorce in the state.

There are three grounds on which divorce could be filed in Nevada. These are inability to stay together as a couple because of incompatibility, insanity issue (that has been existent for at least 2 years before the filing), and if the spouses were living in separate residences for a term of 1 year or more.

The concept of ‘Community Property’ is accepted in the state of Nevada. All property acquired during the marital period is considered as joint property. This property is equally distributed after the divorce.

The exceptions to the community property rule are the assets that one of the spouses inherit exclusively, the possessions that he or she owned before marriage, and the property from any personal investment.

The court grants absolute divorce within a span of 2 to 3 weeks in cases of uncontested divorce proceedings. However it takes more time if there are issues to settle like spousal support or child custody.

Spousal support is determined on a case to case basis. The judge decides whether such support is necessary and the amount of the alimony as well. The alimony can be granted on a permanent or temporary basis depending on the financial standing of the spouses.

A divorce proceeding could be negotiated or mediated. You could also take the case to a court of law. Whatever method of divorce you choose, you need expert legal advice and representation for it. You need an attorney to deal with all these legalities.

The first important thing to do is choose an experienced divorce attorney Nevada. He can help ease the burden of the divorce and guide you properly. He would be able to take care of your interests as well.

An attorney who has a thorough knowledge of the state divorce laws is necessary to deal with your case. He could help you choose whether to go for an out of court settlement or a proper court case.

You need to choose someone who has specialized in family law. Only then would he be able to handle the case as per the particular laws. Experience in the field is another thing that you need to look for when choosing an attorney.

There are a number of law firms offering divorce attorneys to deal with such cases. Contact a local attorney and opt for a preliminary discussion before you choose to hire his services.

1. Keep the arguments to a minimum. You may feel like you want to “win” or make your spouse “pay” due to your spouse’s fault in the breakdown of the marriage, but this behavior will cost you. Stay focused on the outcomes you want for yourself and keep the arguments off the table.

2. Stay clear on your goals. It will be difficult for your attorney to produce the results you want if you don’t know what your goals are in the first place. Set some goals and objectives with respect to the outcome of the divorce beforehand, and it will keep you and your attorney focused.

3. Keep your emotions in check. This is a very difficult and emotional time in your life, and your attorney should be sensitive to this. However, your case will not be easily resolved or settled if you let emotions control your decisions.

4. Find someone to talk to about your feelings (besides your attorney). As stated above, emotions are high during a divorce. Try not to vent about your spouse or discuss each and every problem you had in your marriage with your attorney. Divorce lawyers do care about your feelings, however, they are more concerned about the facts in the case and assisting you in resolving the divorce. A good friend or therapist is more suited to help you emotionally heal and move on with your life, and they generally have a cheaper hourly rate than your attorney.

5. Consider a settlement agreement as opposed to going to court. If you are refusing a settlement agreement in hopes that a Judge will award you what you want, keep reading. Let’s be very clear. No one wins in a divorce. This is especially true in a divorce trial as when the Judge makes a decision it is rarely a win-win decision, and to make matters worse, both spouses generally end up feeling like they lost. Your attorney can usually advise you of the general decisions Judges make in divorce trials, and what results you are likely to expect if your case goes to trial. The courts in Johnson County, Kansas have even produced guidelines that discuss the decisions that Judges will make when deciding a divorce case. For a copy of these guidelines click here.

Keeping these five things in mind will help you keep the costs of your divorce down and make the process smoother. To learn more about the Kansas Divorce process, read The 3-Part Guide to Understanding the Kansas Divorce Process at www.kansasdivorcesource.com/the-book.

The couple gets married in the state and one of them has been a resident of the state for a minimum period of a year before the filing of a divorce.

Either or both the spouses have resided in New York as a married couple for a minimum one year period before the initiation of the divorce process.

The cause of the divorce took place in the state and therefore either or both of the spouses are residents of the state at the time the case was filed.

As stated in the Consolidated Laws of New York- Domestic Relations Laws stated in Sections 230 and 231 of article 13, divorce cases can be filed if both the parties have stayed in the state for a minimum of a couple of years prior to the registration of the case.

Divorce cases in Nassau County can be filed on various grounds. These include:

Desertion for a continuous period of a year as per DRL §170.2
Adultery as per DRL §170.4
Harsh treatment meted out to any of the partners as per DRL §170.1
Change of a separation judgment as per DRL §170.5

However, one cannot file a case for divorce on grounds of bad conduct. A case can only be filed in cases where it reaches an intolerable level of torture. No case for divorce in New York can be filed on grounds such as lack of communication between the couple, irreconcilable differences, no fault in particular, incompatibility or even by mutual consent. If the couple has a child, then ancillary issues crop up. The issues that are a cause of concern include the custody of the child, child support and child visitation.

All these grounds are applicable in case of a contested divorce where the validity of the grounds on which the divorce petition has been filed is examined by the jury and a decision on the case and subsequent equitable distribution of property is taken by the judge.

There are several couples in Nassau County, New York who opt for an uncontested divorce. In such a divorce case, the entire matter is sorted by the couple themselves and then the marital agreement papers are submitted to the court for approval. Uncontested divorce is less expensive and does not involve the legal hassles that are usually associated with a divorce procedure. All you need to do is to seek help from a Nassau County Divorce Attorney.

Marriage: Some times it may happen that you are unable to take the right decision about marriage. In this case you may contact with a family lawyer, he or she will help you to take the decision, and certainly the experienced family lawyer will give you the advice that it is better to be married than living together. There are many couples who love to live together but they are not married. But they can’t enjoy the rights what the married couples enjoyed because they didn’t realize it. Some times they think that they will get the benefits of common law, Please make sure that your state should be having such law, if you are from Fort Lauderdale city and you love to live together than married, you should remember that you will get the benefits of common law.
All states are having their own sets of law and that depends upon the marriage because the traditional marriage is different from civil marriage.
Remember that Fort Lauderdale marriage law doesn’t allow partners of same gender to marry. An efficient Fort Lauderdale family attorney will be able to help you to protect your relationship.

Divorce: For most of the people divorce is a new experience and it represents big changes in relationship. So you need to know your rights and obligations also. It is very critical to fulfill all obligations after divorce. At the time of divorce negotiation some temporary agreements should be established which deals with such issues like, spousal support, property division, parenting rights, child custody and maintenance. And all these agreements will be designed in such a way that both the party will get their rights it will possibly fulfill all the obligations. To get your full rights you should contact with a Fort Lauderdale family attorney, if you and your spouse belong to Fort Lauderdale city.

Child Support: An experienced family lawyer will also help you to enforce and establish child support payments. They are aware about child-custodial rights and other issues related to child support and the family lawyer is experienced with the legal procedures concerning the Child Support.
The child-custodial rights are different as it may be joint custody, sole custody or legal. If you family lawyer qualified and experienced then in this case you don’t to hire child custody lawyer specifically, the family can give you advice that what kind of custody you should fight for and the family lawyer will be responsible in mediating and helping the parents to take the decision.

There are much more issues can arise in your family and you are not able to handle such issues so to get the rights you should contact with an experienced family lawyer.

In my opinion, there are three different types of attorney’s with their personality traits identified.

Attorney #1:
• Goes with the flow
• Reactive, not proactive
• Avoids confrontation and court appearances at all costs.

Attorney #2:
• Has reputation for being mean or ruthless
• Files anything and everything to frustrate the other side
• Loves to try cases, hates to settle out of court

Attorney #3:
• Aggressive when necessary
• Looks at the big picture when making tactical moves
• Will settle when offered a fair, equitable settlement

Which one would fit best with you?

I believe most clients benefit most from hiring someone with the traits of attorney #3. The attorney with these traits will help you achieve the most equitable settlement while looking out for your best interests in the future, while consciously keeping in mind the cost of your divorce. If you are not interested in arguing at all, and have no desire to have strong representation, you should hire an attorney with the traits of attorney #1. If you are bitter, want to fight for years and spend large sums of money on your divorce, pick an attorney who matches with the traits in attorney #2.

As well as general temperaments, it is also good to gain some basic background knowledge and understanding of your attorney’s experiences and office practices.

The Initial Interview checklist
• Do you practice in other areas of law than just family law?
• Will you work on my case or will another attorney or support staff work on my case?
• What is your policy on returning phone calls/email? How long does it generally take to respond?
• Have you worked on cases similar to mine?
• What is your policy on mediation of settlement of cases?
• Do you have time to take my case?

Regarding cost:
• Do you charge a flat or hourly fee? How much?
• Do you require a retainer? How much?
• How often will I receive a bill?
• Besides the hourly rate, what other fees will I be charged?

Working through these elements will help you choose the right attorney for your divorce needs. This article is an excerpt from the ebook “3-Part Guide to Understanding the Kansas Divorce Process,” available at www.kansasdivorcesource.com/the-book.

7 top tips from online will writing specialists harmonywills.co.uk:

1.Single, Mirror, Joint or Mutual Will - Which one?
If your a single person then the choice is fairly obvious however for couples the situation is less clear. A mirror will is two single wills which simply mirror each other, that is to say, they have reciprocal terms. On the death of the first partner all the estate passes to the surviving partner and vice versa. Generally our advice would be to suggest a pair of mirror wills for most couples or two individual single wills if you require different terms. A joint will is a single document which can be revoked by either party without consent of the other. There is no real merit to make a will such as this and we do not recommend it. A mutual will may be appropriate for some people but on the whole they are overly complicated and again, we do not recommend them to most people.

2. Online Wills, DIY kits or see a solicitor?
These days there are many options for making a will and which option you choose really depends on how complicated your estate is. DIY kits are fine if your confident filling out legal forms and your estate is relatively straightforward. An internet will or online will is a good choice for most people as they ask you simple questions and construct a will based on your answers. The better online will writers will not use automated systems and will check your will for errors before it is produced. Many people are now using online will writers to make a will as it offers a convenient, simple and inexpensive to way to write your will. We recommend http://www.harmonywills.co.uk. If your estate is complicated or you are a wealthy individual then its probably best to speak to a solicitor to make a will based on your individual circumstances.

3. Your executors
These are the people or person who will be responsible for distributing your estate after your death. They will also be responsible for paying off your debts, burial costs and any inheritance tax liability that may arise. It can be a demanding role and you will need to pick some you can trust. If you are married, your spouse will normally take on this role but its a good idea to appoint an alternative in case they are unwilling or unable to perform the role.

4. Looking after your children
If you have children then it is a good idea to appoint guardians in your will. For married couples the surviving spouse will normally take on the parental responsibility but should the worst happen and both parents die at the same time then your appointed guardians would then take on the responsibility. For unmarried couples its even more important, if the female dies, her male partner does not automatically get guardianship. Its important make a will and appoint each other to avoid difficulties like this.

5. Be specific
If you have items that are important to you and you want to leave them to certain family members you need to be clear about what the item is and who you are giving it to. For example when you make a will you may decide to give your grandmother's wedding ring to your daughter, that's fine but you need to be specific.

6. Storage
A will is only valid and exercisable if it can be found and is not damaged. Its an important legal document so you should store it safely. A good tip is to make extra copies of your will and give them your executors, guardians or family.

Within my practice, parents’ biggest concerns generally center around how their divorce will affect their children, and in my opinion, it should be the biggest concern. Many parents struggle with how much to tell their children, and when. The information you share with your children depends largely on their age. For example, you would probably want to be honest with your college-aged child about an affair either parent engaged in, but would not yet discuss that with your third-grader.

No matter what their ages, there are several important things every parent needs to do to help their children understand what’s going on and help them cope with their divorce.

12 Ways to Make Divorce Easier on Your Children

1. Assure your children the divorce is not their fault.
2. Try to remain consistent. Keep the same routine you did prior to the divorce.
3. Allow your children to ask questions about the divorce, and be as honest as you can depending on their age. If possible, talk to your children with your spouse present.
4. Do not use your children as listening posts. They are your children, not your confidants.
5. Allow your child to be angry and give them some space. Remember, your child did not make this decision, he/she just has to live with it.
6. Do not discuss money issues or any other problems due to the divorce with your child, then need to feel secure throughout the process.
7. Advise the child’s school/teacher of the divorce so he/she can watch for any alarming signs or behaviors that need to be addressed.
8. Do not introduce your child to boyfriends/girlfriends until you are sure this person will be in your life for an extended period of time.
9. Attend your child’s extracurricular/school functions even though it may not be on your parenting time. Show your child you are still an active part of their life even though you are not living under the same roof.
10. Do not shower your child with gifts trying to buy his/her love. They will love you for spending time with them.
11. Agree on a plan with your spouse as to how you will continue to parent the children. For example, agree on bedtime, computer time, discipline routine, etc.
12. Most importantly, DO NOT criticize your spouse in front of your children.

Just like you, your children will have to go through their own healing process, and if you communicate effectively, you can minimize the negative impact your divorce will have on them. Most importantly, children need to feel loved and secure. If both parents can agree that is the main goal, the likelihood your children will come out on the other side healthy and happy increases significantly.

If you want to dissolve your marriage, here are some questions to ask yourself about whether you are a candidate for an uncontested divorce.

1.Have both you and your spouse agreed that your marriage is broken and you both wish to obtain a divorce?
2.Do you and your spouse have access to and sufficient knowledge about the family’s finances, including all martial assets and debts?
3.Are you and your spouse still able to clearly and calmly communicate with each other?
4.Do you and your spouse agree on issues regarding parenting, such as child custody, parenting time and holidays?
5.Do you and your spouse agree on the division of marital assets, debts and other property?
6.Do you want to save time and money and dissolve your marriage peaceably?

If you answered yes to all of these questions, then you would be great candidates for an uncontested divorce.

One of the main reasons people choose an uncontested divorce over a traditional divorce is because the process is easier and much more affordable than a contested divorce. So what’s the process?

Uncontested Divorce Process in Kansas

If you have a good attorney, the uncontested divorce process should be very streamlined. Meetings with your attorney may take place in their office, but much of the communication can be done via email. At your first meeting, your attorney should ask you to bring several items with you. Below are some examples of information that your attorney may require with respect to the property settlement.

•Information regarding your mortgage – are both parties on the note?
•Cars/Boats, etc – is loan in both names?
•Bank Accounts – if they are not split already, how will they be split? Need names of banks where accounts are held
•Retirement Accounts – how will they be divided? Where are they held? What type of account is it? 401-K, IRA, etc.
•Life Insurance – what type of policy? Who is the beneficiary?
•Inheritance
•Credit cards – need name of card, how much is owed and who will be responsible for what portion
•Information regarding student loans, loan holders, balances, etc.
•Medical bills

If you have children you and your attorney will need to create a detailed plan regarding the care, custody, visitation and support of the children. In regards to child support, payments are calculated using software approved by the Courts. If both parties agree, they can deviate from the amount suggested by the Kansas Child Support Guidelines and set their own amount.

Fees and Filing

Once you provide the necessary information, your attorney will draft all of the legal documents required by Kansas for your divorce to be finalized. Fees for an uncontested divorce vary and are figured based on the complexity of your case, for instance, if you own real estate, have children, require retirement accounts to be split, etc. Some attorneys charge by the hour and some charge a flat fee. Your fee should be set at the time of the initial consultation and should cover:

•The filing fee, which is currently $166.00 in Kansas
•Preparation of documents (Petition, Entry of Appearance, Domestic Relations Affidavit, Settlement Agreement, Decree of Divorce, Certificate of Dissolution of Marriage)
•Filing documents at the courthouse
•Hard copies of all documents for both parties
•Any court appearances

The uncontested divorce process will save you and your spouse time and money and allow you to amicably end your marriage. If you would like more information, you can contact me about an uncontested divorce in the Greater Kansas City Area.

Working out those thorny issues yourselves may not sound like much fun, but hiring a lawyer isn't much fun either. When you sit down with your spouse to determine the divorce terms you can either use a mediator or come up with the terms by directly talking to one another. The less you use the court, the less cost and heartache you'll go through. In many cases this will result in better results for both of you because you have complete control and can decide exactly what you want from the divorce without a court's involvement.

Once you have resolved the big issues such as who gets what property and how you'll split money in a joint account all that remains is to ask the court to grant your divorce. You do that by filing the uncontested divorce form with the divorce terms you two have agreed upon in writing. Even if children are involved you two can create a child custody agreement out of court that you can then file along with your uncontested divorce forms. This is the only way to spare your children from the ugly spectacle of extended parental fights in court, which will help them come through the divorce as undamaged as possible.

Handling your own divorce without lawyers involved really isn't that difficult. Once you've resolved the big questions of child custody, money, and property all that remains is to file the divorce form. In many state's you don't even have to appear in court for an uncontested divorce. Many courts try to make it really easy to go through the whole process of divorcing without a lawyer.

There are cases when you should hire a lawyer though. If you believe that a spouse has abused the children and can no longer be trusted with custody over them then a lawyer would be helpful in proving your case. Or, if you come to court with intentions of representing yourself and you find your spouse has hired a lawyer then you should ask for an adjournment to seek out your own lawyer because this is usually a signal a court battle is about to ensue. It is your legal right to ask for an adjournment (postponement) in order to seek an attorney.

Consultation
The attorney will sit down with you and discuss the case and what you would hope would be the outcome. If he thinks that you have a viable, winnable case he will accept the task. If he does not think you have much of a case for one reason or another, he will direct you to either consider mediation or to change aspects of the case as it stands. Make sure that the attorney you are talking to offers a free consultation in case this is not the one that will be beneficial to your case.

Initial Filings and Findings
After accepting your case, the attorney will start gathering all of the necessary information and forms that he will need to file your case legally. In the case of personal injury, sometimes just having a lawyer representing you can get the insurance companies ready to offer settlements in a much faster fashion.

Responses and Refilings
After the initial filing, the attorney will receive the response from the other side about how they see things. Hopefully, the two parties will not be that far apart and a far and equitable compromise can be reached. However, if this is not possible, then there will be a request (or motion) for a formal hearing or a trial.

Depositions and Discovery
Both sides in the case can bring in witnesses and ask questions without a judge present in a deposition. In this formal hearing, the attorneys can find out each version of the events as well as see which witnesses might be good in a trial situation and which they would rather skip. Discovery is the exchange of all evidence that both sides must abide by. Whatever evidence is going to be presented by your attorney must be sent to the other side in a timely manner so that it can be looked over and inspected. The reverse is also true.

Hearing, Trial and Settlement
In most cases, a trial never happens. During the days before the trial is to start, both attorneys will be back and forth with offers, counteroffers and deals to avoid having to go before a judge. Once the other side offers a deal that your attorney thinks is a good one, he will encourage you to take it. You do not however, have to agree with him and can insist on heading to trial instead.

This article is not legal advice.

"‘gift’" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the ‘gift’ is void.

The conception of the term "‘gift’" as used In the Transfer of Property Act is somewhat different from the practice under the Mohammedan Law. Under the Mohammedan Law a “‘gift’” is a transfer of ‘property’ or ‘right’ by one person to another in accordance with the provisions provided under Mohammedan law and includes-

A. Hiba, an immediate and unconditional transfer of the ownership of some property or of some right, without any consideration or with some return (ewaz); and

B. Ariat, the grant of some limited interest in respect of the use or ‘usufruct’ of some property or right.

Where a ‘gift’ of any ‘property’ or ‘right’ is made without consideration with the object of acquiring religious merit, it is called sadaqah. The terms "hiba" and "‘gift’" are often indiscriminately used but the term ‘hiba’ is only one of the kinds of transactions which are covered by the general term "‘gift’". A ‘hiba’ is a transfer without consideration. A ‘gift’ by a Muslim man in favour of his co-religionist must be under the Mohammedan Law. A ‘gift’ is not a contract (though in Islamic law it is called a contract) but the principle may be applicable even to ‘gift’.

Section 122 of the Act postulates that a ‘gift’ is a transfer of certain existing movable or immovable property made voluntary and without consideration by one person called the donor, to another, called a donee and accepted by or on behalf of the donee. The essential elements of a ‘gift’ are:-

1) The absence of consideration, The transfer; and the acceptance.

2) The donor; and the donee

3) The subject-matter;

Concept of ‘Property’

Mohammedan Law - In general, Islamic law draws no distinction between real and personal property, and there is no authoritative work on Islamic law, which affirms that Islamic law recognises the splitting up of ownership of land into estates. What Islamic law does recognize and insist upon, is the distinction between the corpus of the property itself (ayn) and the usufruct in the property (manqft). Over the corpus of property the law recognises only absolute dominion, heritable and unrestricted in point of time; and where a ‘gift’ of the corpus seeks to impose a condition inconsistent with such absolute dominion the condition is rejected as repugnant; but interests limited in point of time can be created in the usufruct of the property and the dominion over the corpus takes effect subject to any such limited interests. Limited interests in respect of property are not identical with the incidents of estates under the English law. Under the Mohammedan law they are only usufructuary interest (and not rights of ownership of any kind). There is no difference between the several schools of Islamic law in their fundamental conception of property and ownership. A limited interest takes effect out of the usufruct under any of the schools.

Essentials Of ‘gift’ Under Mohammedan Law
Under Mohammedan law, to be a valid ‘gift’, three essentials are required to exist:
(a) declaration of ‘gift’ by the donor
(b) an acceptance of the ‘gift’, express or implied, by or on behalf of the donee, and
(c) delivery of possession of the subject of ‘gift’.
Courts have consistently held that when there is no compliance of any of the above three essential conditions the ‘gift’ renders itself as invalid. Another characteristic of Mohammedan law is that writing is not essential to the validity of a ‘gift’ either of movable or immovable property. In another case the Patna High Court held that under the Mohammedan Law for validity of the deed of ‘gift’ four elements are necessary
¢ declaration of ‘gift’ by the donor
¢ relinquishment by donor of-ownership-and dominion
¢ acceptance of the ‘gift’ by donee, and
¢ delivery of possession of the property by donor.

Acceptance- Acceptance may be made expressly or impliedly by conduct, but acceptance would be unnecessary in a case where the ‘gift’ is made by a guardian to his ward. Mohammedan law does not dispense with the necessity for acceptance of the ‘gift’ even in cases where the donees are minors. If the donees are minors it may be that the evidence of acceptance will have to be approached with reference to that fact, but that does not mean that no proof of evidence of acceptance is necessary in the case of a ‘gift’ in favour of minor.' A minor who has attained discretion may accept the ‘gift’ even after it has been rejected. He may also refuse to accept the ‘gift’.

Delivery of possession - Under the Mohammedan law it is not necessary that there must be actual delivery of possession to make a ‘gift’ valid. It is a fundamental rule of Mohammedan law as regards ‘gift’s,that "the donor should divest himself completely of all ownership and dominion over the subject of the ‘gift’. It is essential to the validity of a ‘gift’ that there- should be a delivery of such possession as the subject of the ‘gift’ is susceptible of what delivery the property is capable of and whether such delivery as the property is capable of has been given would depend upon the particular facts in each case.

The Donor

Donor's powers are unrestricted in Mohammedan law-
A man may lawfully make a ‘gift’ of his property to another during his lifetime, or he may give it away to someone after his death by will. The first is called a disposition inter vivos and the second a testamentary disposition. Mohammedan law permits both kinds of dispositions, but while a disposition inter vivos is unfettered as to quantum and testamentary disposition is limited to one-third of the net estate. Mohammedan law allows a man to give away the whole of his property during his lifetime, but only one-third of it can be bequeathed by will from that of a will a ‘gift’ may be made to a stranger wholly excluding the heirs.

The Donee
The donee is the person who accepts the ‘gift’, by or on behalf of a person who is not competent to contract. A minor therefore may be a donee; but if the ‘gift’ is onerous, the obligation cannot be enforced against him while he is a minor. But when he attains majority he must either accept the burden or return the ‘gift’.

The words 'accepted by or on behalf of the donee show that the donee may be a person unable to express acceptance. A ‘gift’ can be made to a child en ventre sa mere and could be accepted on its behalf.
The donee must be an ascertainable person and be a donee under this section; nor can a ‘gift’ be made to an unregistered society.

A ‘gift’ to two or more persons may be a ‘gift’ to them as joint tenants or as tenants in common. The presumption of English law in favour of joint tenancy does not apply to a Hindu ‘gift’, and in a Hindu ‘gift’ the donees are presumed to take as tenants in common It is necessary in Mohammedan law that the donee should accept a hiba and possession must be delivered in the case of hiba. As hiba is immediate and absolute transfer of ownership a hiba in favour of a person who was not in existence is invalid. It is necessary that the donee should accept a hiba and possession must be delivered in the case of hiba. As hiba is immediate and absolute transfer of ownership a hiba in favour of a person who was not in existence is invalid.

‘gift’s of Usufruct(Ariat) to unborn person or child in womb. - a hiba stands on a different footing from a ‘gift’ of a limited interest in usufruct a ‘gift’ of future usufruct to unborn persons is valid provided that the donee is in being at the time when interest opens out for heirs. A hiba in favour of a child in the womb is valid if the child is born within six months from the date of the hiba because in that case it is presumed that the child actually existed as a distinct entity in the womb of his mother.

Juristic persons - a ‘gift’ to juristic persons or any other institution is valid. So a ‘gift’ to corporate units, e.g. a tauazhi (consisting of a mother and of all her children and not descendants in the female line governed by Marumakkathayam law) are valid. Such a ‘gift’ will be valid as being one for the whole body.

Subject of ‘gift’
The subject matter of the ‘gift’ must be certain existing movable or immovable property. It may be land, goods, or actionable claims. It must be transferable under s 6. But it cannot be future property. A ‘gift’ of a right of management is valid; but a ‘gift’ of future revenue of a village is invalid.

Conditions For Valid ‘gift’ Under Section 122 Of The Transfer Of Property

There was a divergence of view between the two schools of Hindu law as to the necessity of acceptance of the ‘gift’ by the donee, Dayabhaga holding that it was not necessary but Mistakshara holding the contrary. This section has modified the indigenous Dayabhaga law. A transfer of a stock to the name of the donee vests the property in him subject to his right to repudiate the ‘gift’, even though he be unaware of the transfer And this is so even though the ‘gift’ be onerous. The mutation entries of the property alleged to be ‘gift’ed does not conveyor extinguish any title and those entries are relevant only for the purpose of collection of land revenue.

‘Gift’ defined under the Transfer of Property Act is as given below-
122. "‘gift’" defined. - "‘gift’" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
It is required to be a voluntary transfer of property to another made gratuitously and without consideration. This section applies to those ‘gift’s that are ‘gift’s inter vivos or an absolute ‘gift’. Property under the above section can be both moveable or immoveable but however have to be tangible in nature. In order to constitute a valid ‘gift’, there must be an existing property as already earlier elaborated.

Voluntarily - In this section the word 'voluntarily' bears its ordinary popular meaning. It denoting the exercise of the unfettered free will, and not its technical meaning of 'without consideration'. When a ‘gift’ is made, it must satisfactorily appear that the donor knew what he was doing and understood the contents of the instrument and its effect, and also that undue influence or pressure was not exercised upon clear intention to make an out-and-out ‘gift’, but the intention has failed for want of transfer or any other cause, the courts will not convert what was meant to be an out-and-out ‘gift’ into a trust, and the donor will not be deemed a trustee of the property for the intended donee. The ‘gift’ will fail. Where the motive behind the deed of ‘gift’ was unequivocal to give the transferee a title which would act as a safeguard against any claim for pre-emption, the transaction for that reason cannot be called a sale.

Donative intention (motive) and consideration-
A ‘gift’ is a transfer. But it does not contain any element of consideration. Complete absence of monetary consideration is the main, hallmark, which distinguishes a ‘gift’ from a grant or any other transactions for valuable or adequate consideration. Where there is any equivalent of benefit measured in terms of money in respect of a ‘gift’, the transaction ceases to be a ‘gift’. Love, affection, spiritual benefit and many other factors may enter in the intention of the donor to make a ‘gift’ but these financial considerations cannot be called or held to be legal considerations as understood by law. Legal consideration is one recognised or permitted by law as valid and lawful. The term is also sometimes used as equivalent to a 'good' or 'sufficient' consideration. Love and affection is a sufficient consideration when a ‘gift’ is contemplated, but it is not considered as a 'valuable' consideration when such is required.

It is one of the essential requirements of a ‘gift’ that it should be made by the donor 'without consideration'. The word 'consideration' has not been defined in the T.P. Act, but means the same as in the Contract Act excluding natural love and affection. If not, and if the transfer involved consideration, the transaction would amount to a sale within the meaning of sec. 54 or to an exchange within the meaning of sec. 118. The essence of a ‘gift’ inter vivos must be without 'consideration' of the nature defined in sec. 2(d) of the Contract Act.

'Without consideration' - A ‘gift’ is a transfer without consideration and if there is any consideration in any shape, there is no ‘gift’. The word 'consideration' means valuable consideration, i.e. consideration either of money or money's worth. A ‘gift’ in lieu of conferring spiritual benefit to the donor is not a transfer with consideration, but is to be treated as a ‘gift’.
Where a mother ‘gift’s property to her only daughter, who promises to maintain the former throughout her life, the promise is not enforceable in law because the ‘gift’ has to be for natural love and affection and not for any consideration . A minor may be a donee and the minor's natural guardian can accept the ‘gift’ on behalf of the minor. But if the ‘gift’ is onerous, the obligations cannot be enforced against the minor during his minority. But on his attaining majority, the minor must accept the burden or return the ‘gift’. The donee can even be a child en ventre sa mere (in its mother's womb).

Acceptance. - The ‘gift’ must be accepted by the donee or by someone on his behalf. An offer without acceptance by the donee cannot complete the ‘gift’. Acceptance may be inferred from acts prior to the execution of the deed of ‘gift’. Mere silence may sometimes indicate acceptance provided the donee knows about the ‘gift’, slighest evidence of acceptance being sufficient. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the ‘gift’ is void.
Even when a ‘gift’ is made by a registered instrument, the same has to be accepted by or on behalf of the donee to make it complete, failing which the ‘gift’ will be bad, because it so provides in sec. 122. What the law requires is acceptance of the ‘gift’ after its execution, though the deed may not be registered. Anterior negotiations or talks about the ‘gift’ would not amount to acceptance. Person accepting ‘gift’ on behalf of the minors appended his thumb-impression on the deed in token of acceptance. It was held that the ‘gift’ was complete. Acceptance must be essentially made before the death of the donor. There must be something shown to indicate an acceptance. The acceptance may be signified by an overt act such as the actual taking of possession of the property, or such acts by the donee as would in law amount to taking possession of the property where the property is not capable of physical possession. Acceptance may be implied, but the rule of implied acceptance ought not to be extended so far as to hold that the acceptance will be presumed unless dissent is shown. Acceptance will be presumed if there is possession, actual or on the parties where some right, interest, profit or benefit accrues to one party, or some forbearance, detriment, loss, or responsibility is given, suffered or undertaken by the other. There is nothing in section122 of the transfer of property Act to show that the acceptance under this section should be express. The acceptance may be inferred, and it may be proved by the donee's possession of the property, or even by the donee's possession of the deed of ‘gift’.
A ‘gift’ of immovable property can only be made by a registered instrument. A deed cannot be dispensed with even for a property of small value, as in the case of a sale. And as a further precaution, attestation by two witnesses is required. This provision excludes every other mode of transfer and even if the intended donee is put in possession, a ‘gift’ of immovable property is invalid without a registered instrument.

Oral ‘gift’ of an Immoveable Property- In view of sec. 123 of Transfer of Property Act, a ‘gift’ of immovable property, which is not registered, is bad in law and cannot pass any title to the donee. Any oral ‘gift’ of immovable property cannot be made in view of the provisions of sec. 123. Mere delivery of possession without a written instrument cannot confer any title

Under the Islamic law, an oral ‘gift’ is permissible. However, in order to constitute a valid ‘gift’, the donor should divest himself completely of all ownership and dominion over the subject of ‘gift’. It is also essential for the donee not only to prove that the donor had made an oral ‘gift’ in his favour, but it is also essential for him to prove that he accepted the said ‘gift’ and delivery of possession of the ‘gift’ed property had also been effected.

Although the Hindu law requires delivery of possession to complete a ‘gift’ of immovable property, that law has been abrogated by sec. 123 of this Act. This section clearly seems to have the effect of rendering unnecessary the delivery of possession, substituting, as it does, registration for delivery of possession.

Since delivery of possession is not necessary, it follows that if a Hindu executes a ‘gift’ in praesenti of three villages by means of a duly registered instrument but reserves possession of the villages in order to enjoy the usufruct during his lifetime, and at the same time provides that he would not alienate the property to anybody else, the ‘gift’ is perfectly valid.

Under the Mohammedan law, the essentials of a ‘gift’ are: declaration of ‘gift’ by the donor, an acceptance of the ‘gift’ by the donee, and delivery of possession such as is the subject of the ‘gift’ susceptible of. This rule of Mohammedan law is unaffected by the provisions of sec. 123, Transfer of property Act and, consequently, a registered instrument is not necessary to validate a ‘gift’ of immovable property.

Possession means not always actual physical possession but possession which the property is capable of being given. So far as declaration is concerned, it must be shown that the donor either in the "presence of witnesses or otherwise made a public statement that he ‘gift’ed the property in favour of the donee and that he divested himself of the ownership of the property by delivering possession to the donee. A Mohammedan can make oral ‘gift’ of his immovable ‘gift’ subject to these conditions.
Delivery of possession being essential to the validity of a ‘gift’, it follows that if there is no delivery of possession, there is no valid ‘gift’. Under the Mohammedan law, a valid ‘gift’ can be affected by delivery of possession, and if there is delivery of possession, the mere fact that there is also an unregistered deed of ‘gift’ does not make the ‘gift’ invalid.

A Comparative of ‘gift’ In The Transfer of Property Act And In Mohammedan Law Property- ‘gift’s as given under the transfer of property Act deals only with ‘gift’s of tangible properly; and so a release of a security without consideration does not fall under this section; because, though the release of the security may be said to be a ‘gift’, still the ‘gift’ is not one of tangible property. When the certificate of shares together with a blank transfer form signed by the registered shareholder is handed over to the buyer by the registered holder, the buyer acquires not the full property in the shares but the title to get on the register of the company. This title to get on the register, though a chose in action, constitutes goods within the meaning of the Sale of Goods Act, and the ‘gift’ of such title to get on the register is complete when a deed of ‘gift’ duly attested and registered, together with the shares and blank transfer form signed by the donor, is handed over to the donee.

Existence of Property Necessary- In order to constitute a valid ‘gift’, there must be an existing property. In other words, the subject-matter of the ‘gift’ must be certain existing moveable or immovable property like land, goods or actionable claims. It must be transferable under sec. 6. In case of ‘gift’ of certain amount by entries in the books of account by credit and debit, the sums should be available on the date of ‘gift’ in the account of the firm whose accounts are said to be credited or debited. In the case of banking companies or other firms and companies who have overdraft facilities, even if the sums are not in credit of the donor and are not with such companies or firms, ‘gift’s might be possible by adjustment of the book entries. But in the case of non-banking companies or firms, if these companies or firms do not have overdraft facilities, it is not possible to make a valid ‘gift’ if sums or funds are not available. A donation cannot be made of anything to be in future (e.g. future revenues of a property).

Existence Of Property Necessary Also In Case Of Hiba-
A hiba is an out-and-out transfer of some determinate thing or an incorporeal right, it is necessary that such thing or right must be in existence and can be transferred immediately. Also in the case of a ‘gift’ of usufruct(Ariat) produce (Manqfi) refers to rights which accrue from day to day in future. Such produce or use of a thing becomes property particle by particle as it is brought into being. The manqfi may thus be transferred by the donor during his lifetime by ‘gift’ or by bequest and be the subject of ‘gift’ even though they are not in existence at the time of the ‘gift’.

Oral ‘gift’ of Immoveable Property - In view of sec. 123, a ‘gift’ of immovable property which is not registered is bad in law and cannot pass any title to the donee. Any oral ‘gift’ of immovable property cannot be made in view of the provisions of sec. 123. Mere delivery of possession without a written instrument cannot confer any. Under the Islamic law, an oral ‘gift’ is permissible. However, in order to constitute a valid ‘gift’, the donor should divest himself completely of all ownership and dominion over the subject of ‘gift’. It is also essential for the donee not only to prove that the donor had made an oral ‘gift’ in his favour, but it is also essential for him to prove that he accepted the said ‘gift’ and delivery of possession of the ‘gift’ed property had also been.When ‘gift’ May Be Suspended Or Revoked

1) Section 126 of the Transfer of Property provides for conditions where a ‘gift’ may be revoked.the following are those conditions-

2) That the donor and donee must have agreed that the ‘gift’ shall be suspended or revoked on the happening of a specified event;

3) such event must be one which does not depend upon the donor's will;

4) the donor and donee must have agreed to the condition at the time of accepting the ‘gift’; and

5) the condition should not be illegal, or immoral and should not be repugnant to the estate created under the ‘gift’. Section 126 is controlled by sec. 10. As such, a clause in the ‘gift’ deed totally prohibiting alienation is void in view of the provisions contained in sec. 10. A ‘gift’, which was not based on fraud, undue influence or misrepresentation nor was an onerous one, cannot be cancelled unilaterally. Such a ‘gift’ deed can be cancelled only by resorting to legal remedy in a competent court of law.

A Mohammedan on the other hand can revoke a ‘gift’ even after delivery of possession except in the following cases:

1) When the ‘gift’ is made by a husband to his wife or by a wife to her husband;

2) when the donee is related to the donor within the prohibited degrees;

3) when the ‘gift’ is Sadaka (i.e. made to a charity or for any religious purpose).

4) when the donee is dead

5) when the thing given has passed out of the donee's possession by sale, ‘gift’ or otherwise; or the thing given is lost or destroyed,

6) when the thing given has increased in value, whatever be the cause of the increase; when the thing given is so changed that it cannot be identified, as when wheat is converted into flour by grinding; and

7) when the donor has received something in exchange for the ‘gift’ Except in those cases, a ‘gift’ may be revoked at the mere will of the donor, whether he has or has not reserved to himself the power to revoke it, but the revocation must be by a decree of court.

Conclusion
The conception of the term ‘gift’ and subject matter of ‘gift’ has been an age old and traditional issue which has developed into a distinct facet in property law. Different aspects related to ‘gift’ in property act and its distinction with the Mohammedan law and its implications has been the major subject matter of this article. In considering the law of ‘gift’s, it is to be remembered that the English word '‘gift’' is generic and must not be confused with the technical term of Islamic law, hiba. The concept of hiba and the term "‘gift’ as used in the transfer of property act, are different. As we have seen in the project that Under Mohammedan law, to be a valid ‘gift’, three essentials are required to exist: (a) declaration of ‘gift’ by the donor (b) an acceptance of the ‘gift’, express or implied, by or on behalf of the donee, and (c) delivery of possession of the subject of ‘gift’. The English law as to rights in property is classified by a division on the basis of immoveable and moveable (real and personal) property. The essential elements of a ‘gift’ are (a) The absence of consideration; (b) the donor; (c) the donee ;(d) the subject-matter; (e) the transfer; and the acceptance Thus this striking difference between the two laws relating to ‘gift’ forms the base of this project in understanding its underlying implications.

“When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the District Court, for the restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly”.

EXPLANATION: Where a question arises whether there has been reasonable excuse for the withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.[1]

The execution of decree is as per the Rule 32 of Order 21 of the Civil Procedure Code, 1908, whereby, if a respondent has failed to obey such a decree, the court may, in the execution of the same, attach the property of the respondent, and if the respondent fails to comply to the decree within a year then the court may even sell the property and award such compensation to the petitioner as it thinks fit. Rule 33 provides another mode of execution in cases where the petitioner is wife and the respondent is husband. In such cases if the decree is not obeyed by the respondent within the specified time, he shall make such periodical payments to the petitioner as the court thinks fit.[2]

The clause for the decree of restitution of conjugal rights is also found in the Special Marriage Act of 1954, the Parsi Marriage Act of 1936, and the Indian Divorce Act of 1869.

The fundamental rule of matrimonial law that one spouse is at liberty to the society and comfort of the other spouse, forms the foundation of the right to bring a suit for the restitution of conjugal rights. The court has the duty of granting a decree for restitution in the cases where either spouse has abandoned or withdrawn from the society of the other.[3]

One of the important implications of section 9 is that it provides an opportunity to an aggrieved party to apply for maintenance under s 25. Maintenance can also be obtained by the party in case when the action is pending under s 24. Hence, a wife who doesn’t want a judicial separation or disruption of marriage can attain maintenance from her husband without filing a suit for the same under the Hindu Adoptions and Maintenance Act, 1956. Another important implication of the section is that it provides a ground for divorce under s 13(1A) on a condition that there has been no restitution of conjugal rights between them for a period of one year or more after the passing of a decree for restitution of conjugal rights

[1] Desai A. Satyajeet, ‘Mulla: Principles of Hindu Law’, Vol. 2, Lexis Nexis, New Delhi, 2001, p.9.

[2] Kusum, ‘Is a Restitution Decree Sexploitative?’, 11(3), Indian Bar Review, Sep. 1984, p.308.

[3] Desai A. Satyajeet, ‘Mulla: Principles of Hindu Law’, Vol. 2, Lexis Nexis, New Delhi, 2001, p.9.

One of the common points which should be dealt with in a divorce or separation agreement or decree, is which party is entitled to the exemptions for the children. Often, the father, is the chief earner, and the non-custodial parent. To ease the burden on the non-custodial parent who may need a tax break, an agreement or decree can entitle the non-custodial parent to the exemptions for the children--either non-durational, or for specific years.

From 1985-2008 the non-custodial parent taking the exemptions, either supplied a IRS Form 8332, or the relevant pages from the decree or agreement entitling the parent to the exemptions.

From 2009 onward, the decree/agreement pages are not acceptable. Form 8332 should be filed. Of course, what happens if the custodial parent doesn't comply? You may wind up back in court, seeking injunctive relief and possibly damages.

Also new, is the ability of the custodial parent (on the new form) to revoke the non-custodial parent's exemption. Of course, if this contradicts the decree or agreement, back you go into court seeking injunctive relief and perhaps damages.

One good thing in this stupid IRS change, is that any attempted revocation by the new Form 8332 by the custodial parent, takes place the tax year after the non-custodial parent is provided with the revoking form.

You'd have time to take the ex to court.

As a rule of thumb, if there are minor disagreements between spouses, then divorce forms are something to consider. The six scenarios listed below should guide you when to use a divorce kit against hiring an attorney.

1.Your divorce is uncontested

This applies when both partners mutually agree for separation. In general, the more cooperation between spouses, the more viable the do-it-yourself divorce alternative. If, however, a spouse is missing or has deserted the relationship, then you may want to hire an attorney to protect your interests.

2.No "future income" to divide

If neither partner has an IRA, stock investments or retirement plans, then filling out state divorce forms may be something you want to look into. With no future income to divide, the divorce process is dramatically less complicated. On the other hand, if one or both partners have a pension or stock investments, issues may arise such as dividing future earnings and dividends. We recommend in almost all cases that you consult with an attorney over this.

3.Property distribution has been agreed upon

In 90 percent of cases, a lawyer is not required if both partners are in mutual agreement about how to divide the marital estate. Who will get the family home or will you sell it and split the proceeds? How will you divide bank accounts, furniture and even debts? The forms for divorce are ideal for situations in which property distribution has been agreed upon.

4.Child custody, visitation and support are agreed upon

Similar to property distribution, if you and your spouse are in agreement as to how custody issues should be handled and that agreement is one that is fair to everyone involved, then a do-it-yourself divorce form should work fine.

Questions that will arise: Will the child or children live with mom or dad? Will there be visitation for the non-custodial parent? How will child support be handled?

5.Spousal support is agreed upon

If you and your spouse have agreed to a fair settlement or if both parties can sufficiently provide for themselves without support then a standard divorce form should be able to handle this issue.

6.The divorce laws of your state are understood by both parties

It is important that both you and your spouse meet the requirements for obtaining a divorce in a specific state. This may require some research on your part if you are not hiring an attorney. Before filling out state divorce forms, we suggest both parties understand the established procedures of the state law.

Nobody wants it, few expect it, but the reality is, the nationwide divorce rate is somewhere around 50% on average. Some published articles opine greater percentages for dental/medical professionals.

The medical/dental professional facing a divorce, not only has to contend with the emotional issues, and matters of custody and visitation with respect to children, but must often undergo a thorough financial examination of his practice by outside forensic experts, while he tries to maintain that practice, and serve his patients.

Minimizing Emotional Pain

With respect to emotional issues, I have often helped professional clients by making them view divorce as a legal event that deals with property and family issues, that changes the structure of a legal event—marriage—which created property and family issues between the parties.

By categorizing the process as an event, and not the sum total of one’s life, worth, or existence, the emotional pain of divorce can be more quantified, more contained, less damaging. Given the scientific and logical training of a dentist/doctor, this viewpoint is more readily embraced by them.

Minimizing Negative Impact on Patient Care

With respect to the court process, what the dentist/doctor can be facing, is a system that cares little for the realities of his practice, or his care for his patients.

There are some judges that require the parties to be present in court for every appearance, regardless of whether or not that appearance is merely a procedural step necessitating only the attorneys be present, or a substantive appearance wherein parties’ testimony may be needed.

I have seen it happen where judges will call last minute conferences requiring appearances, without concern of the full schedule of patients a dentist/doctor must minister too. Last minute cancellations of appointments are not only a detriment to the patients, but to the dentist/doctor-patient relationship.

One way of minimizing this problem, is to initially have the attorney “sound out” the assigned judge regarding appearances of the parties, and ensure that the judge knows that the dentist/doctor is not just an ordinary divorce supplicant, but has medical and ethical obligations to patients that are every bit as important—if not more—than a court’s arbitrary desire to have parties appear without any real purpose.

(There are times I’ve had to practically beg a judge to be reasonable and cognizant of the unique situation of the dentist/doctor, and forgive his non-appearance. Most of the time, begging worked).

Another reality, is that quite often, appearances are scheduled well in advance, and it is important that the office managers/assistants are made aware as soon as possible that there are certain mornings not to schedule patients, certain days that are not available to attend conferences, seminars, or continuing education programs.

Streamlining Forensic Examination of The Value of the Practice

Perhaps the most time consuming—and bothersome—incident to the divorce proceedings is the gathering of financial records related to the practice of the dentist/doctor, so that a forensic evaluation may be had for equitable distribution purposes.

Often, the license to practice as well as the practice was obtained during the marriage, and is an item to be evaluated and distributed. In other cases, where the license was obtained prior to the marriage, but there has been an expansion of the practice during the marriage, the adversary spouse will look for a portion of the appreciation of the practice—especially in a case where she has provided services to the practice—bookkeeping, office management, etc.

A forensic examination will encompass billing records, insurance claim forms, bank statements, deposit slips, benefits, payroll records, equipment leases and purchases, tax returns, and just about any financially related document a forensic accountant can get his hands on.

It takes an inordinate amount of time to access, organize and reproduce these items--time taken away from the practice of dentistry.

How does one minimize this?

In reality, these documents might at any time be needed to apply for a loan, to sell a practice, to bring in a partner, etc. when there is no divorce pending.

They should be organized in any event, and when not under time pressure to do so. The professional should have tax returns in a file, billing records in a file, equipment leases in a file, etc.—whether that file is hard copy or electronic.

By taking some regular increments of downtime to organize documents which—divorce or no divorce—should in any event be organized, much time and expense can later be saved.

Forensic accountants charge upwards of $300 per hour or more in New York, and the less digging for documentation they have to do, the less digging into your pocket you have to do.

If you have space in your office complex to have the examination performed there, (away from patients’ eyes of course) you may want to consider that the examination be done on site. If this isn’t practical, your attorney should liaison with the examiner, to insure that any records which need be returned, are promptly returned, and that privacy concerns are observed.

Given the unique privilege and privacy concerns of the dental/medical professional, there are times when protective orders may be needed to avoid any ethical violations in the divorce document discovery process. Certain records will have to have names, as well as other personal identification data redacted.

Avoiding Publicity

The last thing a dentist/doctor needs is a public airing of his divorce proceedings. One has to be careful of the selection of a divorce attorney, for there are some that are would be media darlings, and look for broadcast attention regardless of the potential detriment to the client.

Readers may remember the recent Nassau County case wherein a doctor sought the return of a kidney he donated to his wife, or monetary compensation therefor, within the context of a divorce.

Much print and television time was dedicated to this bizarre claim. I was present, trying a case next door to the kidney case while members of the press were there, and the media feeding frenzy was not pretty.

The final result in that high visibility divorce was a denial of the application, and a note by the court, that in seeking compensation for the donation of an organ the doctor might have violated the public health law, and committed a crime.

No medical professional wants this kind of publicity, it can decimate a practice, and can spill over into ethical areas. Ergo, attorney selection is imperative—you may want a bulldog on your side, but never a publicity hound.

Conclusion

The unique situation of the dentist/doctor within the context of a divorce, calls upon him/her to approach the emotional issues with all the scientific/logical thinking background embedded in them by their education and training, to realize an event is not an epic or an epitaph--that there is life after a divorce.

The unique situation of the dentist/doctor within the context of a divorce, calls upon him/her to approach the emotional issues with all the scientific/logical thinking background embedded in them by their education and training, to realize an event is not an epic or an epitaph--that there is life after a divorce.

Lastly, the dentist/doctor should be careful in his selection of divorce counsel, and avoid those who would seek self promotion over the privacy interests of the client.

It is often the elderly or vulnerable who are taken advantage of by companies or individuals providing Will writing services at 'too good to be true' prices. In many cases, the 'affordable' Will writing service is a loss leader, upon which other services are sold. This could mean that the final bill may be far higher than the original quote as every dotted 'i' and crossed 't' incurs an additional 'administration' charge.

Cold calling potential customers and pressuring those who admit to not having yet made their last Will and testament into doing so is not the way Will writing service providers should be operating, and such practices have a detrimental effect on the service as a whole. Having an independent regulatory body will require all who provide a Will writing service to adhere to a well defined set of practising standards.

Currently, no such regulatory body exists in the UK and Will writers are free to choose whether or not to become members of the 'self-regulatory' Society of Will Writers or the IPW. These organisations require their members to follow certain guidelines & standards of service, therefore ensuring the general public are safeguarded from unethical and unqualified practises.

However, a 'one for all' regulatory body could create more problems than it aims to solve. This is due to the fact that unscrupulous Will writers are a minority and often individuals with little or no professional experience. It is this minority which needs to be regulated and not necessarily the industry as a whole, as the vast majority of professional Will writing companies are perfectly capable of regulating themselves and their staff.

Where there are no rational grounds for regulation, there should be no regulation. Larger corporations have their own training facilities, legal departments, ongoing professional development programs and many other advantages over the 'one man band' outfits. Different rules are needed for individuals who provide a Will writing service and Will writing companies which have a proper infrastructure in place.

That is not to say there should be no regulation. As previously discussed, the minority of unscrupulous individuals are in need of some regulation as they, unlike Will writers who are part of a larger organisation, are currently answerable to no-one. Over regulation could destroy the industry, so the creation of a regulatory body for the Will writing industry as a whole needs to be flexible enough to cater for the needs of both individual Will writers and corporate entities.

If these talks are to prove successful then more representatives from the industry as a whole need to be included. Topics such as licensed and approved training courses, continued professional development accreditations, and corporate membership rather than multiple individual memberships all need to be properly investigated. The more representatives we have around the table will create the basis for better regulation where needed, rather than the IPW morphing itself into the regulatory body.