8 Ways to Fail – Things Not to Include In Your Contracts

8 Ways to Fail – Things Not to Include In Your Contracts

Generally, lawyers are decent writers. However, the legal vocation is also one of the slowest to change of any of the professions, mainly because it is steeped in tradition. Unfortunately, when it comes to drafting contracts, tradition is not always best.  Unnecessary, inaccurate, and useless terminology and phrasing creeps into legal documents and infuriates clients who expect lawyers to draft documents an average person can read and understand.

Also, most lawyers learn by imitating the habits of other, more experienced lawyers, who in turn learned their skills from even older lawyers.  For these reasons many good lawyers often produce contracts that are full of poor drafting.  This article will point out of few of the pitfalls every lawyer should consider.

  • “Herein” should be “Here-OUT” – This type of compound word should be avoided at all costs, it is unwieldy and unnecessary. “Herein” is an inherently ambiguous word because it could mean: ‘in this sentence’, in this paragraph, or ‘in this contract’.  And ambiguity is the kiss of death in contract drafting.

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Tax Consequences in Divorce

Tax Consequences in Divorce

According to expert tax accountants Accountants Australia, People often overlook the important tax implications of getting divorced.  They’re usually focused on child custody issues or division of property and fail to understand or bring up important issues that will determine the ultimate determination of how taxes will be attributed and assigned as a result of their divorce.

Important areas to think about are: division of assets, support, income tax filing, division of retirement benefits and, if applicable, innocent spouse relief.

As a foundational issues, the Supremacy clause of the U.S. constitution means that Federal Tax law will govern even in state court where divorces are heard.  That means a state court judge may not validate any agreement that contravenes federal tax law.

Let’s look at how these rules affect different parts of a divorce.

  • Division of Marital Property
  • No gain or loss.  Generally, no gain or loss is to be recognized when assets are transferred because of a divorce.  There are some rules to follow when determining whether the “transfer” was a part of the divorce.  They are:
    • The transfer is required under the divorce decree or divorce or separation agreement.
    • The transfer occurs within six months of the marriage ending
    • There is a presumption, although subject to rebuttal that a transfer was related to the divorce if it occur within six years but the party can show there were legal or business reasons for delaying the transfer.
    • Exceptions:  There are some exceptions that apply to this rule, such as where the spouse is a resident alien, some transfers related to trusts and some stock redemptions.

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Cross-Examination: Psychology in Practice

Cross-Examination: Psychology in Practice

A variety of psychological factors come into play when lawyers cross-examines a witness. It is often not what questions are asked, but how they are asked, and to what end they are given. A few important principles are:

  • The Doctrine of Completion: As a general rule a listener (e.g. a jury) expects to hear certain things from a presenter (e.g. a witness). The jury expects a coherent story and fairness (ie; facts and pieces of the story are not hidden from them). They expect the attorney and witness will tell a full and complete story, without hiding anything. The purpose of cross-examination then becomes to let the jury know that they attorney is fulfilling the requirement to have a complete and whole story, that fairness and completeness is the goal. The attorney is held out as someone is interested in the Doctrine of Completeness.
  • Self-Fulfilling Prophecies: An attorney can employ this tactic and become “prophetic” by providing the jury during Voir Dire and the opening statements facts and information that is then corroborated by the witnesses and documents they provide as evidence. The psychological advantage is gained when the information appears unknown or unexpected – as if the lawyer, and the lawyer alone – knew that it would be revealed. During closing arguments, it is critical to remind the jury that you predicted the information would come out, and that it actually was presented in court. The overall purpose of this tactic is to enhance the credibility of the attorney and to highlight and enforce certain key facts or elements of the case.

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Driving You Crazy – Psychology Experts In Criminal Cases – Virtues and Vices

Driving You Crazy – Psychology Experts In Criminal Cases – Virtues and Vices

Bringing a psychology expert into your criminal case can be a mixed bag.  Many positive things can happen when engaging such an expert, but there are also many pitfalls to avoid.  Generally, a well-prepared expert can be a great boon to your case, but beware of potential vices that may be lurking inside their testimony.  Here are a few things to watch out for:

  • Pros – Expertise: It’s no secret your expert knows a lot of information, they are well educated and well-spoken.  They bring a myriad of positive attributes to the courtroom:  1) Reliability: experts are seen as professionals and sometimes scientists who base their conclusions on fact and are therefore reliable. 2) Psychology experts know statistics and based their reports and testimony on data gleaned from the real world.  3) Test – your psychological expert knows psychological testing, its benefits and weaknesses.  Make sure to use your expert to attack the ‘reliability’ of the opposing party’s evidence, as opposed to its credibility.
  • Pro – Experience: Your expert knows about pop culture psychological references and phone or even sham psychological syndromes that may be introduced by opposing counsel.  Use your expert to debunk these misconceptions.  Also, emphasize that your expert has a long history of education and training.  This is not their first “rodeo”.  Have the demonstrate the similarities between your case and cases the expert has dealt with in the, have them discuss what techniques opposing counsel is likely to use and why.

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Parental Alienation and Abuse Allegations in Divorce

Parental Alienation and Abuse Allegations in Divorce

During and after a divorce becoming the target of parental alienation can create huge fear and depression in the case of the parent being alienated.  There is potential for complete loss of the relationship with the child, or, on the other hand, what if the allegations by the child, typically abuse, are true?

Let’s discuss what parental alienation is and what it isn’t by first trying to define what it is.  There is wide-spread debate about whether the problem even exists.  For example, the Diagnostic and Statistical Manual of Mental Disorders used by the American Psychological Association doesn’t recognize Parental Alienation as a syndrome.  Some argue that while the DSM doesn’t specifically call for the syndrome, the elements of the problem are clearly defined in the manual.

The DSM does use a category of Parent-Child Relational Problem, and Child Affected by Parental Relationship Distress to be used when “the focus of clinical attention is the negative effects of parental relationship discord (e.g. high levels of conflict, distress, or disparagement) on a child in the family, including effects on the child’s mental or other medical disorders (DSM P. 716).

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Effective Prenuptial Agreements

Effective Prenuptial Agreements

In a general sense the purpose of any prenuptial agreements  in family law is to agree in advance on several key items in the relationship:  property division, debt, support for each spouse, and administrative items like attorney’s fees if the marriage comes to an end.

These types of agreements also reduce the stress and conflict a divorce might impose on each spouse, children and other family members.

Many people rely on a prenuptial agreement by itself, but it is important to remember that other estate planning documents should be referenced and included with the prenuptial agreement, such as: will, trusts, advance directives, etc.

Some information is critical to gather in preparing a prenuptial agreement.  For example, you should examine: Tax returns, debts, vehicle titles and registrations, Life insurance contracts, business ownership, investments and retirement accounts, estate planning documents, and recent bank statements.

The debts of each spouse should be carefully considered.  In some cases, if debt is not properly addressed in prenup a creditor might have the ability to seek payment from either spouse.  A prenup is a good opportunity to specifically limit your liability for your spouse’s debts if necessary.

Prenups can also deal with financial or other obligations during the marriage, as opposed to just addressing issues that might come up if the marriage ends.  Some issues that could be governed during the marriage might be: increasing benefits according to the length of the marriage or deciding what financial responsibilities each party will have,

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