Law Blog

According to the U.S. Census Bureau, by 2030, about 20% of the U.S. population will be age 65 or older and by 2050, this aging segment of the U.S. will represent 88.5 Million people versus the 38.7 Million in 2008. (See U.S. Census Bureau) The increasing age of the Baby Boomer population comes with a significant transfer of wealth either through wills, trusts or through state mandated intestacy laws.  And, it raises an issue concerning how prepared Americans are in developing their estate plans, whether their estate is valued in the millions or in the thousands.

Contributing to this significant transfer of assets is an increase in the number of will contests being brought today, particularly as it relates to step-families.  Children of these families are rapidly learning that the second (or third) spouse often has significant if not greater rights than the children; intestacy shares can range from 1/3^rd to as much as ½ of the decedent’s estate when there is no will.  (Before Your Parent’s Say ‘I Do’ Again)

Even when there is a will, sometimes a new spouse will change not only the family dynamics but also the dynamics of the will or family trust.  Most Americans are familiar with Anna Nicole Smith’s short-lived marriage and protracted court battles that continue even after her death. (Daughter to Inherit Mother’s Estate ).  Anna’s litigation, however, is not atypical although most people’s estate assets are significantly less than the Marshall fortune.

In fact, some children are proactively approaching their parents about their estate plans before their parents die.  SmartMoney.com profiles Neil Finkel whose 80+ year-old father placed a large percent of his multi-million dollar estate into a trust for his son.  However, Finkel’s Dad married a woman 30 years his junior. Amy, the new spouse, and Neil subsequently waged a 2-year court battle over the father’s dwindling assets which were being eroded by the spending habits of the new wife.  Although the case was settled, it’s unlikely that the rift in the family will be healed and it could erupt again after Dad Finkel’s death.  (Before Your Parent’s Say ‘I Do’ Again)

During the past five years, tens of thousands of people have used LegalMatch to find an attorney to represent them in filing a lawsuit to contest a will or to defend the estate against a will contest.  Not surprisingly, many of the most popular states for will contests have a high concentration of residents age 65+.  Plus, this top 10 state list comprises over 55% of LegalMatch’s will contest customers: 

Your will or trust will have lasting implications on your heirs after your death, particularly in those families where there are step-children or multiple spouses.  Probate litigation is generally protracted and can tear families asunder.  Developing a proactive estate plan, even if your estate assets are small, should help to reduce family tension after your death.  However your estate plan is crafted, you will be communicating a strong message to your family. The properly drafted will can stand the tests of probate court and ensure that your intent is followed after death.

Each year, thousands of clients seek divorce attorneys through LegalMatch.com. News of recent layoffs and stock portfolio value drops carries a human side, with increased tensions over money management between spouses as the result. Rising stress over unemployment, change in routine, foreclosures, spending too much or saving too little can place a significant strain on a relationship.

But even with increased martial frictions, how has this economic downturn actually affected marriages in the U.S.? Given all the speculation, it seemed fitting to see what the actual statistics would show.  From January 1 to March 31, LegalMatch client intake reports show a 7 percent increase in the rate of separation in 2009 over the same time period for 2008. This isn’t exactly an earth shattering jump, but still it is significant.

Of course, those facing harder economic times often reassess the value of their assets- and in a marriage that often means taking a good look at your combined finances. After all, divorce can be expensive, and separating from your spouse often means forgoing a second income. Some states even consider debt acquired during the marriage as community property, potentially meaning a spouse could be forced to pay the mortgage for a house in which they no longer reside. Spousal support and/or child support may be too much to pay for an individual should the marriage dissolve. The downside is that it may mean staying in a marriage that no longer works for many couples.

Right now it seems the majority of couples are choosing to weather the economic storm together, for better or worse. It will be interesting to see if this still holds true as the recession stretches on over the coming months.

According to LegalMatch.com data, 27% of the victims of domestic violence in the past 12 months did not report the incident to the police. These figures come from an analysis of anonymous customer intake reports between now and April 2008. Studies by the Bureau of Justice Statistics (BJS) show that victims of crime are less likely to report incidents involving non-strangers than strangers. Together these figures make sense: because domestic violence involves intimate partners and family members, people may not want the police involved.

Other reasons such as those brought up here may further contribute to a lack of reporting. Mandatory policies based on political grandstanding plus the limited repertoire of tools available to the Police may make people hesitant to call the boys in blue. When a cop’s toolbox is generally limited to handcuffs and a gun, there are only so many things they can do.

What is the exact problem we are looking at when over a fourth of victims are not reporting crimes to the police? That cops should be better trained to deal with these issues, and people should therefore be more encouraged to call them?

I’m skeptical of a solution that sees more police involvement in family disputes as an improvement. Obviously there are situations where the police should show up: a large amount of murders occur between spouses where the offender should have already been in jail, or should have been under more rigorous supervision from law enforcement officials.

On the other hand, there are also situations where police presence might have done more harm than good. The recent murder of 3 officers in Pittsburgh occurred after the shooter’s mother requested that the police come and kick her son out of her house. The police shouldn’t have to expect that an armed lunatic is going to greet them at the door of a domestic disturbance call, but situations like this will stay in the back of officers’ minds and make dealing with these calls all the more difficult.   

Should more people be reporting domestic violence? If there is a genuine crime occurring, yes. But like so many other issues in the criminal justice system, the law is often called on to fix situations it is ill-equipped to handle. Domestic violence and domestic disturbance runs the gamut from genuine crimes that warrant incarceration or arrest, to family disputes where guns and handcuffs may serve to only make matters much worse. Although there are serious problems associated with the non-reporting of violent crimes, there is a context. Should the police be involved in each and every domestic dispute? Does the use or threat of violence always warrant the involvement of the police and of the courts? I do not think so.

Over 2 million restraining orders are issued in the United States each year. In the past 12 months several hundred customers logged onto LegalMatch.com seeking legal help in obtaining restraining orders.  The table below shows the top targets:

• Someone I date or used to date: 44%
• My spouse or former spouse: 31%
• Family member: 17%
• Neighbor: 5%
• My co-worker or former co-worker: 3%

LegalMatch data correlates with statistics from the Department of Justice showing that spouses, family members, and intimate partners make up the vast majority of victims of violent crimes, rapes, and stalking. DOJ statistics also show that 25% of women and 7% of men were raped and/or physically assaulted by a current or former spouse, cohabiting partner, or dating acquaintance at some time in their lifetime. It makes sense that 92% of LegalMatch.com clients seeking restraining orders come from one of these groups.

In some cases after restraining orders are issued, however, startling studies indicate that the risk of physical violence to partners increases. How is this possible? 

In the past decade a variety of states enacted laws mandating that police arrest anyone suspected of violating domestic violence-related restraining orders. This was contrary to many prior policies stating that arresting a misdemeanant was discretionary. Unfortunately, a Harvard study indicated that the risk of partner-homicide in 15 of these states increased by 60% after implementation of the new laws. Why? Victims that did not want their significant other arrested simply didn’t call the police.

Rather than learn from their mistakes, several states have also instituted “no-drop” policies. Similar to mandatory arrest, these states do not allow prosecutors to drop charges against a partner accused of violating a restraining order, as would be customary with other charges. Just like mandatory arrest, policies such as this discourage people from calling the police, since more often than not victims do not want their significant others arrested.

What can be done? Regardless of mandatory arrest or no-drop policies, it is always risky to call the cops into your home to solve a domestic dispute. Since their only tool is a rather blunt hammer, the police tend to see every problem as a nail. Perhaps a mixture of better training for cops dealing with domestic violence disputes plus increased discretion for prosecutors and police officers would help, but ultimately domestic violence is not something that our government, or any government, can really stop via law enforcement. Whatever the solution, tying the hands of law enforcement does not appear to be working.

Besides being nasty, bitter, and sometimes deadly, divorce is big business. Millions of dollars per year are pumped into the courts and into attorney fees to settle costly divorce cases. Last year alone, over tens of thousands of clients nationwide logged onto LegalMatch.com seeking divorce attorneys. It is generally assumed that divorce will be a long, hard battle, testing emotions and pocketbooks alike.

But is there an alternative? Yes, mediation. It saves time and potentially a lot of money. Surprisingly however, in 2008 only 9% of the thousands of LegalMatch family law clients stated that they and their partner were willing to consider first seeking the advice of a qualified mediator to settle their divorce. 16% stated they did not know what mediation was, and 32% said that they were willing to try mediation, but were unsure of whether their spouse would. Almost 40% dismissed it outright, with the vast majority stating that their spouse would not agree.

At its most basic level, mediation allows the couple to decide their own divorce terms, and not rely on a distant and impartial judge. So why are almost 90% of couples seeking divorce at LegalMatch either unwilling or not ready to perform Mediation, or unsure of what it is? Doesn’t this sound better than putting the future of your loved ones and everything you own into the hands of a 3^rd party?

To a rational mind, perhaps. Unfortunately, divorce is rarely if ever rational. Although mediation is quicker and costs less than a divorce; although the agreement has the same effect as a litigated divorce decree; although experienced legal professionals are still involved and still inform couples of the legal ramifications of their agreement, the most likely culprit preventing this streamlined and cheaper alternative is simple: communication, or lack thereof. Emotions run high in divorce, and this means the lines of communication are often severed. Or, disenchanted couples form a “winner take all attitude” and cannot fathom the possibility of sitting in the same room and reaching a negotiated settlement with their spouse, even with the assistance of an experienced mediator.

Mediation is a very different animal from your average divorce settlement. For one, there is no adversarial relationship in the trial sense. There are not two competing family law attorneys zealously advocating for their respective clients. Instead, there is generally one mediator sitting in the room with the unhappy couple attempting to get them to reach a settlement between themselves. This is a difficult step to take, and also a difficult mindset to adopt in the midst of a divorce. The fact that most LegalMatch respondents were unsure of whether their spouse would be willing to try mediation shows that communication has often completely broke down when couples reach the important stage of wanting to officially proceed with their divorce.

It is unfortunate that such a tragic time in a family’s life is further compounded by a messy and expensive court battle. Perhaps if more couples were aware of the benefits of mediation, they could avoid the extra burden placed on everyone by undergoing divorce litigation.