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Mediating Your Divorce

mediation-150x150If you seek a non-confrontational approach to ending your marital relationship, mediation may be the route for you to take. Mediation is a type of Alternative Dispute Resolution (ADR), which can be a very cost-effective and efficient manner of amicably working out divorce related issues.

Mediation, Not Litigation

Mediated divorces are not litigated and there are no court appearances. A trained and neutral third party, usually an attorney familiar with matrimonal and family law, meets with the parties and reviews all issues with them in a non-confrontational manner. If the parties are mature, reasonable, and patient, mediation may be the best route to take with regard to handling a divorce case.

Divorces Where Mediation Won’t Work

Mediation, however, is not for everyone. Situations where the parties are not talking to each other or are not amicable do not present a good prospect for mediation. Cases involving very volatile relationships are also inappropriate cases for mediation. Further, domestic violence matters should not be mediated.

Mediation Requires Good Faith

For mediation to be successful both parties must be honest with each other. If either party hides assests or seeks to intimidate the other party, mediation is not going to work.

Divorce Can Be Difficult

Divorcing your partner can be a difficult process. Long term decisions need to be made on issues such as child custody, visitation (parenting time), spousal maintenance (alimony), equitable distribution of assets, dealing with business assets, valuing professional degrees, as well as the grounds for divorce. If you decide to use mediation, you should choose your mediator carefully. The Matrimonial and Family law attorneys at the Law Offices of Schlissel DeCorpo have more than 100 years combined experience dealing with all types of Matrimonial and Family Law issues. We are available to discuss mediation and other divorce related topics. Contact us for a free consultation.

Same Sex Marriage Fails in Maryland

There is a bill before the Maryland State Legislature to allow same sex marriage. On Friday, March 11, 2011, this bill was withdrawn from consideration due to the unlikelihood of the bill being passed by the state legislature. The law was titled the Civil Marriage Protection Act. For the past few weeks, the bill sponsors have been claiming that Maryland would be the sixth state to pass a same sex marriage law. The sponsors’ difficulties have been increasing in recent days.

The National Organization for Marriage and The Family Research Council both opposed this bill. They claim that African Americans and religious opponents were the reason for the defeat of the bill. They stated that particular thanks must go to African American pastors, church members and delegates who spoke out against the attempted highjacking of the concept of civil rights.

The bill supporters hoped to obtain full marriage rights similar to those that exist in Massachusetts, New Hampshire, Vermont and Connecticut and the District of Columbia. They were not interested in a civil union statute, which they claim was a watered down version of what they wanted. For now, gays can’t marry in Maryland.

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Nassau County Divorce Lawyers

We are divorce lawyers. For more than 33 years, we have represented clients concerning issues involving divorces, divorce grounds, family law matters, orders of protection, child custody, child abuse, child neglect, separation agreements, annulments, division of property in divorce, amicable divorce, fathers’ rights, mothers’ rights, mediation and pre-nuptial and post-nuptial agreements.

We also represent individuals married in other states who are seeking divorces in New York. Same sex relationships involve many of the same issues that heterosexual divorce are involved with. Feel free to call us for a free consultation at 1-800-344-6431, 516-561-6645 or 718-350-2802.

Mortgage Mediation, Nevada Style

untitled.bmpSeveral years ago, Nevada was a state where home prices skyrocketed. Today, Nevada suffers from one of the highest foreclosure rates of any state in the country. RealtyTrac.com claims that one out of every eighty-four households in the state of Nevada has received a foreclosure notice. This is 4.5 times more than the national average.

To deal with the high foreclosure rate, Nevada has implemented a foreclosure mediation program. The purpose of the program is to get troubled borrowers and lenders to negotiate amicable resolutions concerning foreclosure issues. The program has been in effect since July of 2009. As of this date, almost 9,000 mediation requests have been received. Nevada is currently the only state that requires banks to enter into a mediation program.

Since the mediation process started, in excess of sixty-percent of all foreclosure cases have been resolved through mediation. Not all of the resolutions resulted in the homeowner keeping their home. In some cases, as a result of the mediation, the homeowner realized they have no possibility of affording their home and agreed to vacate the premises; however, a large majority of the cases were resolved with the financial institution and the homeowner working out a mortgage modification plan.

New York Foreclosure Defense

The law in New York does not require mediation for foreclosure lawsuits; however, New York Governor David Patterson signed into law a statute that requires mortgage companies, banks and other financial institutions to participate in settlement conferences.

The settlement conferences are required whether or not there are mortgage modifications that are pending. In most situations where there are mortgage modifications pending, the lawsuit is put in abeyance until such time as there has been a decision made with regard to the mortgage modification. In many respects, the settlement conferences have a mediation-type of impact due to the fact that the judge will explore alternatives to the case moving forward.

Our law office has been representing individuals with financial problems who face foreclosure and other types of lawsuits for more than thirty years. Should you have financial problems or find your house in foreclosure, feel free to call us. There are alternatives to foreclosure and we can assist you with regard to these alternatives. Contact our office as 1-800-344-6431, or by email.

When You (Or a Loved One) May be Entering a Nursing Home…

nursing-home-elder-lawIf you, a spouse, or parent think that you may need the services of a nursing home in the near future, you should know that there are some things you can do to plan for this possibility and help maintain some of the person’s assets.

Nursing homes can be very expensive. Residing on one can deplete $9,000 to $12,000 per month from one’s assets on a monthly basis. You can apply for Medicaid to assist with these bills, but they will only begin paying once the person has completely “spent down” their assets to$13,800 (in 2009) altogether.

There are steps that you can take which would allow you to preserve much of your assets for the next generation while still qualifying for Medicaid if and when nursing home services are needed.

When an individual applies for Medicaid, and the Department of Social Services is looking into whether the application has indeed depleted his or her assets down to almost nothing, they actually look up to five years prior to the application date to see if the person made any transfers to children or others in order to preserve their assets from Medicaid’s required “spend down” to poverty.

Elder law attorneys, such as the experienced lawyers at The Law Offices of Schlissel DeCorpo, can assist individuals in applying for Medicaid or, for instance, setting up an Irrevocable Trust that may allow a senior to preserve his or her assets from Medicaid’s “spend down” requirement throughout their lives.

We can personalize these trusts depending on each individuals circumstances.

For instance, if someone has owned their home for a long time, such that the house has increased in value by $250,000 for individuals or $500,000 for married couples, and if the Irrevocable Trust does not appropriately deal with this increased equity in the residence, there can be significant tax liability when the house is sold.

Regardless of whether you need an Elder Law attorney to prepare a Medicaid application or create any other kind of Medicaid plan, you can contact our offices at 800-344-6431 or e-mail us with any questions or to set up a free consultation.

Picture courtesy of injuryboard.com.

Using Mediation or Arbitration to Save Time and Money

mediation arbitration agreement settlement bindingMany people inquire at our office regarding Alternative Dispute Resolution (“ADR”) options like mediation and arbitration. These have certain advantages over traditional litigation, although they have certain disadvantages as well which should be considered. Mediation and arbitration are also very different from one another, and parties should consider those differences before deciding whether to pursue arbitration, mediation, or regular litigation.

Mediation: First, mediation is a process whereby a third party works with disputing parties to assist them in reaching an agreement. The mediator does not represent either party and nothing that happens in a mediation is binding on either party until they both sign some kind of settlement agreement that memorializes the argreement that they reached with the help of the mediator. The advantage of mediation is that it avoids the excessive attoreys feels and costs of a litigation and helps the parties come to an agreement in a more amicable manner that may not be as acrimonious as an all-out litigation. The disadvantage is that it will only work if both parties are willing and able to come to a mutual agreement because the mediator cannot force any resolution on the parties.

Arbitration: An arbitration is a quasi-judicial process whereby the parties agree in advance to have their dispute resolved by a third-party arbitrator. The arbitrator will conduct some form of judicial proceeding and then issue a ruling which will be binding on the parties and which the courts will enforce. Parties often have attorneys and even “trials” in arbitration proceedings so the cost savings are not as significant as they are in mediation, but where the parties are unable to come to a resolution on their own and need someone else to settle the dispute without the full cost of a regular litigation, artbitration may be the best choice.

There are many independant organizations that provide independent, third-party arbitration services like the American Arbitration Association (“AAA”) or National Arbitration and Mediation (“NAM”). Some people prefer to have their cases decided by arbitrators who use religious law in deciding cases like the Jewish Beth Din of America and the Institute of Christian Conciliation. One of the difficulties in arbitration is that althought U.S. and state courts will generally enforce arbitration decisions, they do not always do so.

Congress has made it clear that it strongly supports a policy of enforcing arbitration decisions. The Federal Arbitration Act (“FAA”) provides that when an arbiter issues a decision pursuant to a binding arbitration agreement between parties, “any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order.” 9 U.S.C. § 9 . (It should be noted that these federal rules are binding only on federal courts. State law disputes are arbitrated according to each states’ arbitration laws.)

Furthermore, Congress also supports the enforcement of contractual agreements to arbitrate future disputes. “A written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2.

However, there are federal and state law exceptions to the general enforcability of arbitration agreements. We wrote earlier about the nullification of an arbitration award by a rabbinical tribunal back in January by a Brooklyn court in the context of an employment dispute, Brisman v. HAFTR. There, a teacher was let go, the parties went to binding arbitration with a rabbinic tribunal, the tribunal awarded the teacher his job back as well as back pay, and then a Brooklyn judge vacated the arbitration award. The teacher’s appeal of that case is now pending before the New York State Appellate Division. UPDATE 2/19/10: The teacher won the appeal.

On the other end of the spectrum, Prof. Howard Friedman of the Religion Clause blog recently reported that an Indiana Federal court recently upheld an agreement to engage in “biblically based” Christian arbitration pursuant to an employment agreement. Easterly v. Heritage Christian Schools, Inc., 2009 U.S. Dist. LEXIS 76269 (S.D.IN. Aug. 26, 2009. This case also involved a teacher who was let go from a religious school. One difference between this case and the rabbinic tribunal case is that this teacher, Dorothy Easterly, made federal law claims against her former employer, so her challege to the Christian biblically based arbitration agreement was heard in federal court, rather than state court.

The bottom line is that mediation or arbitration can be a great way to settle a dispute without the cost of a full-blown litigation, but one should make sure to take all of the benefits and potential pitfalls into account before making a decision.

Picture courtesy of Civil Negotiation and Mediation

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