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Legal Issues of Divorce You Never Thought You’d Have to Face
Should you hire a divorce lawyer? A divorce mediator? An arbitrator? What should you do?
One of the very first things you may be worrying about if you are contemplating divorce is the legal ramifications. On top of all of the emotional work that you are doing right now, the legal and financial aspect can be one of the most overwhelming issues when it comes to divorce. Today’s woman is a lot more confident and successful than divorced women of yesteryear, and they stand to lose a lot more financially and legally when it comes to divorce. This can be frustrating as you have been working so hard for so many years to get to where you are today. When you add divorce in the mix, overwhelming feelings arise as now it feels like you may have to start from scratch.
Many legal questions about divorce may be clouding your head, and here we will help you fine tune the different areas of divorce law so that you can make some sound judgements as to what the next steps are in your marriage from a legal and financial perspective. The good news for you is, you do have options outside of expensive lawyers and time-consuming and costly court dates.
What legal options do you have when contemplating divorce?
• Traditional Divorce. This is a fairly common kind of divorce, and one of the most common. In an article for the American Law and Economics Review, titled “These Boots are Made for Walking: Why most Divorce Filers are Women,” Authors Allen Douglas and Margaret Brinig discuss this type of divorce. When women become the filers in a divorce setting, the egos of their male counterparts tend to get a little bruised, and this is when divorce has the potential to get ugly. In a traditional divorce, emotions are high and both parties seek the counsel of the adversarial type of lawyer that will “go after everything they can”. This is the kind of divorce that is costly both in time, money, and emotional health. If there is any amicability between you and your spouse remaining, this may be the kind of divorce you want to avoid. When you are contemplating divorce, low costs at all levels will be the most beneficial to you as you move forward in reinventing your life after divorce.
• Pro Se Divorce. In this kind of divorce, you are essentially representing yourself, and conducting the divorce and settlement between you and your spouse alone. This kind of divorce is legal and can be upheld in a court of law if needed, and is the least expensive and emotionally draining divorce. To get a pro se divorce, you would use a “do-it-yourself” kit and undertake all of the paperwork with your spouse. This is the most amicable kind of divorce, and is the best option if your divorce will be uncontested and you and your spouse can agree on all divorce terms together without the ugliness of legal intervention. Your local court or town hall will have information on what you will require to undertake a pro se divorce.
• Divorce Mediation. The American Arbitration Association defines arbitration and mediation as a form of alternative dispute resolution that you can engage in the process of divorce. A mediator will be used in a divorce litigation process when you want to avoid court costs and are able to work with your spouse towards the negotiation of a divorce settlement. This is a trained professional that will work objectively with both parties to negotiate these terms. The benefits of a mediator are that you can avoid the emotionally draining process of a court proceeding, while at the same time avoiding the costs that go with this.
• Collaborative Divorce. In their book “Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues, and Move on with Your Life,” authors Pauline Tesler and Peggy Tomson discuss one of the most amicable types of divorce possible. Here both you and your spouse will hire your own lawyers, but rather than taking an adversarial approach to your financial and legal concerns, you and your lawyers will work together to reach a divorce settlement without having to undergo the costs of court.
The best legal option for you depends on your own situation. Mediation and Collaborative Divorce are becoming more popular in the U.S. The less adversarial the approach, the more likely that the divorce settlement can be reached quickly and with the least cost and emotional pain.
Keiko Hsu, CPC, ACC is a Change Agent & Certified Life Coach / Business Coach with 20+ years leadership experience in the corporate world. She is Founder/Owner of Wings for Women, dedicated to coaching and mentoring professional women who are going through a major life event such as a divorce. Keiko helps her clients to overcome mental blocks, achieve major goals, and reinvent themselves to create more fulfilling, joyful lives that are aligned with their passions and core values.
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Legal Issue Analysis
Harassment may occur in different forms including sexual, workplace bullying, and debt collection harassment among others. This study outlines an analysis of the legal aspects involved in debt collection harassment. According to Kevin, J. (2010), debt collection harassment can be of many forms as determined by ‘The Fair Debt Collection Practices Act (FDCPA). As defined by this act, debt collection harassment can be verbal or written. It is common that most people do not know their rights and hence they are threatened and harassed by those people they owe. According to the law as indicated by the FDCPA, a debt collector should not call repeatedly, threaten to use violence or use abusive languages when asking for his/her debt (Kevin, 2010).
According to Kevin, J. (2010) the writer of the article on debt collection harassment in the Ezine magazine, there are issues that are considered violations of the Act of the debt collector. As he describes, the debt collector should not call at work places, call after been requested not to, call without identifying him/herself, send notices resembling court notices, publish a list of customers owing him/her, falsifying that he/she is an attorney, and trying to extract payment over the phone. It is lawful for the debt collector to call in the case there is a genuine debt to repay but should not call repeatedly or use tough language (Kevin, 2010).
As revealed in this magazine, debt collector harassment will be avoided when the consumer stay calm whenever he/she is called, refuse to argue over the debt, avoid using foul language, request for debt validation, send a cease and desist letter, and dispute the debt. A person can sue the debt collector under the FDCP Act in case he/she is harassed (Kevin, 2010).
The federal law through FDCPA protects victims of debt collector harassment who have faced the unfair, unlawful and abusive actions of debit collectors. It is good for people to be conversant with the law and especially issues concerning their rights in order to avoid harassments (Hobbs, 1988). The legal analysis of debt collector harassment indicates that, the debtor should be given adequate time to clear the debts without being harassed. According to Hobbs, R. (1988), creditors should not force their debtors to pay them by the use of violence and abusive or threatening words. On the other hand, creditors have the right to be paid but through a legal procedure or an agreement. If a debtor has refused to pay his/her debts as agreed, the creditor may use the law in order to get his/her payments made (Hobbs, 1988).
From an example given by Crowley, C. (1997), creditor’s ignorance of the law should not be used as an excuse for the wrong done. According to her, a creditor is prohibited by the law under the FDCP Act to add any extra amount of money to the debtor as a form of interest without an agreement. On the other hand, it is argued that debtors should not use the law to delay payments or refuse to pay their debts (Crowley, 1997).
Ignorance of the law is the main challenge that faces the legal issues concerning the debt collection harassment. According to Hobbs, R. (1988), section 130 (c) of the ‘Truth in Lending Act’ (TILA) offer defense for creditors in the case that the infringement of the law was not deliberate but was a result of genuine error. Lack of knowledge of individuals’ rights has made so many people get harassed by debt collectors (Hobbs, 1988).
According to Kevin, J. (2010), the ‘Fair Debt Collection Process Act’ (FDCPA) protects debtors from harassments of creditors by allowing debtors to sue their harassing creditors. FDCP Act has sets rules and regulations in order to determine what should be termed as harassment. This act allows the creditor to call the debtor to recover a debt but in a respectful and systematic way without using harsh and abusive languages. This Act through legal procedures punishes the creditors who harass their debtors. As indicated by Kevin, J. (2010), the FDCPA define debt collector harassment as repeatedly calling the debtor, threatening to use force, using abusive languages, giving false identity, extracting payments over the phone, and calling at places of work among others. According to this act, the debtor should stay calm during the call, be respectful when talking, request for debt validation, and send a cease and desist letter among others (Kevin, 2010).
Recommendations
The debtor and creditor should come up with a plan on how the debt would be paid where the debtor promises what he/she would get at a certain period of time. The debtor should write to the debt collector on what time he/she should be called. Debtors should make sure that they pay their debts on time to avoid being disturbed by the debt collectors. In case of harassments, the debtor is can sue the debt collector through the appropriate legal procedures.
Conclusion
Despite the fact that debtors owe their creditors, they have their rights and hence they should not be harassed in any way. On the other hand, the debtor should make sure that he/she has paid the debts according to the agreements made. There are laws and regulations which protect the debtors from harassments of debt collectors.
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