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Vested Properties and Informed Consent Applies to Law
Jan L. Warner & Jan Collins

Question: My wife and I have been separated eight times during our ten-year marriage. We both saw lawyers, and although I want to reconcile, my lawyer says that I should file a lawsuit to protect myself. How can I file for divorce and go to counseling and not look like a fool?


Answer: In many states, a spouse’s property rights are “vested” with the filing of a suit for divorce or separation. With the stormy marital history you describe, if you don’t file, your share of marital property could be either lost or diminished. While we agree there may be a fine line between economic self-preservation and attempting reconciliation, we do not believe that several past separations is sign for a bright marital future. But, in the final analysis, you must make the decision.


Question: My husband and I have not gotten along for years, but lived together to avoid the expense of lawyers. We openly discuss how we can extricate ourselves from our miserable existence without losing everything. Can my husband and I handle our divorce without lawyers and expect to be treated fairly by the court?


Answer: The doctrine of "informed consent" – by which physicians are required to apprise the patient of all treatment options and then help the patient make the best decision – has been transported to the practice of law. And rightly so.


People should hire lawyers for two main reasons: 1) expertise in legal options and procedures and 2) familiarity with local courts and personnel. Clients should want to be involved because 1) it's their future everyone is talking about and 2) the client ultimately bears the risk of the attorney’s actions when the case is over. At the same time, lawyers should want their clients to be informed and should, where possible, find cost-effective ways to provide information about the basics so clients can make appropriate decisions.


That said, you and your husband are certainly free to set yourselves adrift in the family court system without help, but we believe that this is a mistake. Your best bet, in our view, is to learn your options and enter into a relationship with a professional who is in touch with your needs.


Question: After 35 years of marriage, my wife and I have decided to call it quits. I am concerned about health care expenses if we get divorced because my employer has stopped providing coverage for employees and retirees. I planned to start drawing my early retirement, but I don't know how much because a large part of my money was invested in stock that went south. Do you have any ideas?


Answer: With tough economic times ahead for most people over age 65, it could be a tragic mistake to call it quits because 1) your wife will get a part of your disappearing retirement, 2) your home may be put on the market for sale, 3) the average monthly out-of-pocket health care expenses for women over 65 is rising, and 4) only a third of health care expenses will be paid by Medicare. Unless you are a real glutton for punishment, consider staying married, perhaps living in separate parts of the house, and facing the uncertain future together.



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Planning Your Future with 20-20 Vision™

 

 


Today, more than 36 million Americans are age 65 or over. There are more than 22 million family-member caregivers. Then there are the Baby Boomers. All are grappling with the major decisions that accompany the latter stages of life. This book is for them. Written by two experts with decades of experience between them, it is a comprehensive guide that instructs readers about how to create a plan to deal with all aspects of aging, helps maximize options and ensure wishes are carried out.

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Suggested Reading:
Separation and Divorce Guidebook
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FS-Be Wary of Credit Issues with Ex
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FS-Becareful of Bargaining Away Alimony As Child Support
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FS-Lawyer Tells Me to Lie & Pension Double Dipped
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FS-On and Off Again Reconciles Can Create Agreement Disasters
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FS-The Dangers of Family Loans
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FS-Transference of Affection & 10 Tips of Divorce
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