Keeping Our Heads When Others Are Losing Theirs!

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Marcy Jones, (JD), attorney, divorce coach, lecturer and first-time author has written a superbly informative and emotionally supportive book entitled Graceful Divorce Solutions: A Comprehensive and Pro-active Guide to Saving You Time, Money and Your Sanity. Jones understands firsthand that facing divorce can feel equal to experiencing one of the greatest losses of your life: the loss of your hopes and dreams as a couple. Jones's stated mission for her book is not small, she wants to see the transformation of a faulty legal system which she says is "broken." She goes on to claim, "Right now, we don't do divorce, it does us. Simply stated, the whole system is illogical and out of control."

The good news, there is an answer in the 21st century called being informed about the current legal system and its alternative called "Collaborative Divorce." Throughout this work, Jones encourages us to trust that "by using our common sense and a bit of emotional intelligence, we can begin to apply some practical solutions that are needed in order to protect the many families and children who are affected by this life transition."

Like an empathic divorce coach, Marcy Jones conveys authentic care for her readers, after all, she knows intimately of their suffering.

Coming to accept the fact that "this marriage is over" can be excruciating. Whether you're the one asking for divorce or the one being asked for one, your life and everything you knew prior to this date will be forever changed.

Emotionally, dealing with divorce is much like dealing with a death of a loved one. One will most likely have to go through what author of On Death and Dying, Elizabeth K?bler-Ross, calls "the five states of grief" which include: Denial, Anger, Bargaining, Depression and Acceptance. Jones reminds her readers that the person who files for divorce may already be experiencing "acceptance" of the marriage's end whereas the one asking for a divorce may be in stage one, "denial" or two, "anger." Either way, for her or him, acceptance can seem to take an eternity. But filing for a divorce affects each person differently.

Graceful Divorce Solutions offers multiple vehicles for learning "how to" get a divorce that works well for all people involved, including children. Jones educates her reader to know that the emotional process of divorce is just one piece of the bitter pie. She claims couples will have four divorces to work through to experience a satisfying or, at least, workable ending to their marriage (which applies to both gay and straight couples alike). These four stages include: The Legal Divorce, The Financial Divorce, The Social Divorce and The Emotional Divorce.

Because this time in a distressed couple's life can be vexed, like riding a never-ending roller-coaster, guidance and correct information are vital if you're to skillfully negotiate the labyrinth called our legal system. And yet, when your life feels upside down, the last thing you feel like doing is learning how to work with the ins and outs of a truly upside down legal system.

Throughout the book and in uniquely-helpful ways, Jones makes her convictions known, "I object to the conventional way we do divorce, and so should you! The system is not just flawed. There's not just a little crack there. It's totally busted. It is so senseless and out of control, it's hard for me even to find strong enough words to express this truth." Like the civil-rights hero Dr. Martin Luther King, Jr., Marcy Jones is dedicated to transforming this unjust system into one that values collaboration and workable outcomes for children of couples that decide to end their marriage.

Jones will have little reader resistance regarding her disappointment with the training and behavior of most lawyers. Yet, most of us don't know that the U.S. legal system was largely founded on the premise that civilized people need protection from violence, political tyranny and threats to their personal property. Most of us go to court only to serve as jurors or to fight a speeding ticket in traffic court. For some, filing for a divorce may be our very first encounter with the legal system. Understandably, the prospect of dealing with lawyers, courts, and legal mumbo jumbo can be overwhelming.

One of the best ways to steel yourself for what's to come and boost your self-confidence is to find out about the laws that apply to divorce and the legal processes involved in getting a divorce. Marcy Jones's book, Graceful Divorce Solutions, serves as free legal counsel and offers you room to explore your own questions, needs and fears in this wholly accessible guide.

The reader can't help but see that the legal system, in its current incarnation, is not friendly to families, kids or to couples seeking to be non-combative. A peaceful resolution is a rare outcome when one goes to divorce court, in part, because lawyers have been trained in Zealous Advocacy - to argue for the best result they can get for their client regardless of how it affects or damages others. But, such an aggressive framework can be infinitely destructive not only to the parties involved, but to the children that the couple may need to co-parent for the rest of their lives. Jones reminds us, from first-hand experience, that to co-parent in a skillful way, adults need to do their best to get along. Children need stability to thrive and watching unhappy and bitter parents resent each other, perhaps vocally assault the other parent's character, is always destructive.

Prior to becoming a collaborative attorney, Jones, herself, survived working with our archaic legal system in going through her own divorce. Both her husband and past bosses were practicing attorneys who frequently used an adversarial approach to "solve" disagreements. The word "collaborative" was rarely used or thought of positively and would certainly prove less profitable for the firm. There seemed to always be a "winner" and a "loser" in the court of law, according to Jones. For most, that's just the way the system rolls.

Who wouldn't be discouraged with this current state of affairs? Yet, after reading this book it is clear that Marcy Jones has not lost hope. She believes change and empowering ourselves can come through a commitment to learning alternatives. She testifies: "The truth is, more and more lawyers who specialize in family law are also feeling the destructiveness of the conventional divorce process and looking for a better way." She goes on to announce the solution: "Collaborative divorce was the answer."

Perhaps a little background on this method is in order. In the late 20th-century, around 1990, attorney Stu Webb began using his own "collaborative divorce" model in a way that swept rapidly across the legal world. Some disgruntled family lawyers began to work with mediators (non-legal professionals trained to be impartial coaches in service of both parties finding non-violent ways to find common ground). Others thought, "This process could benefit with a matrix of support for each person involved (whether the frustrated couple lives with or without young children)." Hence, they gave birth of the collaborative divorce method.

Pauline Tesler, author of Collaborative Divorce: The Revolutionary New Way to Restructure Your Family, Resolve Legal Issues and Move on with Your Life, was one of the earliest trainers traveling across North America to meet this demand. Like Tesler, Jones has become one of the most active collaborative lawyers in the field. She functions not only as persuasive leader but almost like an evangelist for life-altering change in the field of divorce law. She's embraced an interdisciplinary team approach for creating a supportive process for all en route to a non-aggressive settlement. Now, more than ever, this team model has become available in most states and provinces in North America and, due to the rave reviews from content clients, word of mouth is spreading on how this collaborative method works and why it seems to be so successful.

All divorce is painful but a collaborative divorce, according to Jones, allows the greatest possible support to each person involved. A team of helpers from the fields of law, psychology, and finance can provide coordinated support and guidance to slow down, reflect, focus on the big picture, each person's goals and values. All of this is done in service of making the best decisions together. When couples agree to work non-combatively-to find agreement in relation to division of property, debt, assets, and child custody-there becomes no need to go to court.

Settlement outside the legal system is what all parties involved must agree to in order for this collaborative arrangement to work. As a matter of fact, agreeing NOT to go to court is a requirement in order to begin the process of a collaborative divorce.

Until all people know this, Jones will not stop educating the rest of us, inevitably leading the way to a family law overhaul. Like ending racism, Jones believes that ignorance about alternatives to the current legal system is not only radically disempowering, putting many at the mercy of the courts, it is destroying lives. What's even more frustrating for Jones is how many people don't know the consequences of going through our current legal system in search of creating a viable settlement.

So many would-be clients of divorce attorneys do not have a clue about how divorce proceedings work in their state. Complex laws-including state property laws and federal tax laws, plus numerous interpretations of those laws-can make deciding who gets what an overwhelming undertaking, especially if you and your spouse have managed to amass a considerable amount of assets.

If you and your spouse can work together to resolve these issues, your divorce can be relatively quick and inexpensive. However, if you can't resolve it between the two of you, or if your divorce has complicating factors (your marital property or debt is substantial, for example) ending your marriage can take time and money. In a worst-case scenario, you must look to the courts for guidance, something that's as expensive as it is unavailable.

The "cost" of divorce is hard to measure even if one keeps their focus entirely on money. Certainly, the result of most settlements-unless you're married to Donald Trump or Tiger Woods-has left more ex-wives than ex-husbands financially challenged. Too, the older your age, if it's been a while since you've worked, can make earning a viable income unlikely. Therefore, getting an adequate amount of spousal support, (formerly called "alimony"), for a long enough period of time is essential to maintaining an acceptable post-divorce lifestyle. However, if your divorce is rancorous, your spouse may fight against paying you the amount you think you need or go after you via character assassination to avoid meeting what you consider to be their financial obligation.

Time management and mental health concerns are also important factors to attend to when filing for a divorce. Again, Jones sees the present legal system as monstrously inadequate. When we look to it for help, it's more like playing Russian roulette with your (and, if relevant, your children's) future. Among other factors, local norms and cultural values can enslave you to the will and whimsy of the courts. A judge in a socially-conservative part of any state may decide the same issue-alimony or which parent gets custody, for example-quite differently than a judge in a more progressive part of that same state. You can appeal a judge's decision, of course, but appeals are rarely won. Moreover, appealing means spending more money, time and mental-health on an attorney and then, if you win your appeal, you'll spend even more money on a new trial (the timing of which is as predictable as a wild monkey).

Wading through the swamp of the legal system on one's own becomes less and less desirable. There's no doubt that people need experienced guidance. Jones offers her readers exactly this kind of help. She shares not only useful information on collaborative divorce but also on the current practices inside family divorce law. As such, through writing exercises and useful summaries in each chapter, she helps readers decide which way they may want to go.

Jones lets the reader know that while one may resolve legal, property and financial issues via pursuing a divorce through the court system, she warns that the same law will not resolve the anger, guilt, fear, or sadness each person may feel. Jones says, "Don't look to the legal system to do that for you. You'll be left feeling disappointed and frustrated when your divorce is over."

Marcy Jones, with great sincerity, broad experience and emotional intelligence, wants her readers to be informed and "at choice," as they say in the life-coaching world (something for which Jones has also received certification). One of her favorite slogans Jones uses more than a few times in her book is "Knowledge is Power." There is no doubt that Graceful Divorce Solutions is equal to several empowering consultations with a wise divorce coach, family counselor and one who knows the "ins and outs" of the current legal system. Jones gives divorcing couples, and those who care about creating a peaceful end to their marriage, practical support that they will not get anywhere else, certainly not for free.

Graceful Divorce Solutions will enable any spouse to bypass the truly awful, adversarial process of the courts and find a collaborative result that will surely leave each member part of a humane, compassionate and viable future.

Jennifer Manlowe, PhD is an author of several books in the fields of psychology, gender, health and spirituality and is also a Certified Publishing Coach (CPC) with over 20 years of experience helping people "go public" with their writing. Manlowe compares what she does to a book-publishing midwife: "I believe everyone has a book inside them. What brings me the most joy is helping you bring out that baby and share it with the world. I believe that together we can launch your best ideas alongside your heart's desires via writing from the inside out!" To order any one of Manlowe's seven books, click HERE.

Corporate Law Adviser - Justification of Criminal Sanctions For Violations of Corporate Governance

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Introduction

1. Corporate governance is concerned with the separation of ownership and control that results when a company is publicly listed and, therefore, has too many owners who cannot all control the company at once, and as such, they hire professional managers to do so. It has been defined, thus:
"The system through which those involved in the company's management are held accountable for their performance, with the aim of ensuring that they adhere to the company's proper objectives".

It is generally accepted that the law plays a key role in corporate governance particularly in the provision of shareholder protection and the reduction of expropriation that is the result of the separation of ownership and control. However, on the importance of role of criminal law in enforcing good corporate governance there are more than one view. Effectiveness of criminal sanctions in deterring corporate governance violations.

2. In order to deter certain undesirable conduct, the criminal law has traditionally employed such sanctions as imprisonment, fines, and the stigma of criminality. While the effectiveness of these sanctions in criminal law generally has been debated, it has been persuasively argued that they can effectively deter corporate crime. Since corporations are primarily profit seeking institutions, they choose to violate the law only if it appears profitable. Profit maximising decisions are carefully based upon the probability and amount of potential profit, so a corporate decision to violate the criminal law would generally include a calculation of the likelihood of prosecution and the probable severity of any punishment. Making these costs sufficiently high should eliminate the potential benefit of illegal corporate activity and, hence, any incentive to undertake such activity.

2.1 Improper corporate conduct could be deterred by applying criminal sanctions either to the corporation itself or to its officers and employees. A corporation cannot, of course, be imprisoned but there may be stigma of criminal label attached to it. Such stigma could influence corporate behaviour if it led to diminished profits.

2.2 A system of fines imposed on corporations should also adequately deter illegal corporate activity as long as the fines are large enough to force the corporation to disgorge all benefit gained from illicit conduct.

2.3 It is possible to deter corporate misbehaviour by applying criminal sanctions to individuals in the organisation. Since businessmen fear the stigma of criminality for both personal and economic reasons, such penalties might be effective deterrents. Indeed, the fear of criminal indictment or investigation, even in the absence of conviction, may effectively deter corporate officials.

2.4 Corporate civil sanctions and even individual civil fines will be inadequate when an individual is motivated to violate the law by reasons other than corporate benefit. He may seek, for example, to enhance his position within the corporation or even to use his position to violate a law which he believes is unjust. Thus, any additional deterrence which is needed to supplement a system of civil fines could only be obtained by imposing criminal sanctions on such blameworthy behaviour by individuals.

2.5 Criminal law also empowers other law abiding individuals - whether the Board of directors, senior management, or other professionals - to stand up to less well intentioned colleagues or, at a minimum, to resist going along with misconduct.

2.6 The survival and long-term profitability of corporations is no longer a private interest which merely affects those who deal with the corporation at a primary level, for instance investors, but also a public interest affecting the welfare of stakeholders such as employees to whom it provides jobs and pensions. The Government, therefore, has a responsibility to ensure that employees as well as other stakeholders of the corporation are protected from the fraudulent acts of managers who do not act in the best interests of the company. The success of the corporation is, therefore, a public interest that, to a certain degree, ought to be protected through State regulation.

2.7 Research has confirmed that criminal sanctions are the only mechanism that can protect investors from large scale fraud or theft. Every country uses harsh criminal punishments to deal with cases like Enron and Parmalat. This suggests that criminal punishment is a generally accepted way of protecting shareholders from expropriation and risk-taking in corporate governance.
Dangers in the application of criminal sanctions

3. Some commentators have expressed doubts about the effectiveness of criminal sanctions for violation of good corporate governance. They believe that the criminal sanctions to corporations and individuals are ineffective deterrents to violations of good corporate governance norms.

3.1 The use of criminal sanctions to regulate business activities is generally perceived as being an over-reaction that is likely to discourage directors from taking the risk that is necessary to run a business, thereby slowing down economic growth and interfering with profitability.

3.2 The use of criminal sanctions is an expensive way of enforcing regulation, which has a high burden of proof and as such is prohibitive to those seeking remedies for expropriation, as shareholders are required to demonstrate the director's culpability.

3.3 Criminal sanctions cannot provide restitution to shareholders and employees who have lost their jobs.

3.4 The difficulty in pinpointing responsible persons in the corporate structure lessens the likelihood that a businessman will in fact be convicted of criminal activity. Thus, corporate crime may not be adequately deterred by criminal sanctions designed for individuals.

3.5 The criminal law is being used to regulate behaviour that is not in and of itself morally blameworthy and in some cases imposes sanctions in the absence of fault. The use of criminal sanctions for purely regulatory purposes represents a severe departure from the traditional aims of the criminal law-deterrence and retribution.

3.6 The type of activity which results in criminal liability in the corporate setting is different from other criminal activity; the primary concern is often with the supervisors and managers rather than with the direct actors. Thus, corporate officials may be held liable for acquiescing in, or for recklessly or negligently tolerating, the illegal activity of subordinates.

3.7 Criminal sanctions are imposed on a corporation, an artificial entity which can possess no state of mind, in the absence of some theory which ascribes fault to the corporation itself, rather than only to its officers, directors, and employees, the concept of mens area in criminal law is itself challenged.
Conclusion

4. Given the range of policy issues raised by corporate governance, and variety of industries and firms involved, government decision makers will need to understand thoroughly the effects that different regulatory actions can have. There are arguments both in favour and against the use of criminal sanctions to be imposed against the violators of corporate governance norms. As per the existing laws of our country there are various provisions fixing the criminal liability of the wrongdoers in cases of fraud and misconduct, etc. Indian Penal Code affixes penal liability for any fraud or breach of trust committed by the companies and even various individual sections of the Companies Act impose penalties for violations of certain norms which are part of good corporate governance.

But these provisions have merely remained on paper and their implementation has often remained a big headache for the government. However, scandals and scams such as Satyam's case have been a reality even in the present times. Even though section 23E of the Securities Contracts (Regulation) Act, 1956 imposes penal liability on the company for any violation of the condition of listing agreement, which includes clause 49 of the Listing Agreement and relates to corporate governance, but the fact remains that such liability is imposed on the company itself which directly affects the stakeholders in the company and are in fact the real victims of violation of good governance.

Sanjay Mathur has written article in Corporate Law Adviser journal recommends a unified code to impose strict penal and civil liabilities on such violators so that such incidents are not repeated in future and implementation of such penalties does not remain a distant dream only.

Lawsuit Funding - The Use of Credit and Background Checks

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At Fair Rate Funding, we are frequently asked whether we run credit checks in connection with the funding process. The answer to this question is "no".  However, other "checks" are routinely used by lawsuit loan companies to help in their underwriting.   This post will discuss this topic in a little more detail.

Credit Checks

Credit checks are utilized by lenders to assess the likelihood a loan will be repaid and the terms of the loan followed.  A lawsuit funding transaction is not technically a loan because in the event the lawsuit is unsuccessful, the cash advance does not need to be repaid.  Instead, the funder purchases a portion of the the proceeds of the case, if any.  Because of this, the creditworthiness of the applicant is a non-issue and the credit score not usually a factor in the underwriting process.   However, the applicant's background may be an issue and must be factored into the decision to fund a particular case.

Background Checks

When a case is submitted for lawsuit cash advance funding, the underwriter must assess all pertinent facts.  Since the lawsuit loan is not repaid unless the case is ultimately successful, lawsuit funding underwriters face a difficult challenge because they must base their decision on a limited amount of information.  In fact, thousands of cases are funded each week based on a few pieces of paper (e.g. police report, insurance information, and medical records) and a phone call to the attorney's office.

What little information the underwriter does have must be used to the fullest extent.  One piece of information is the applicant's background.

Pre-settlement loan companies normally utilize background checks only after a case is approved for funding.  Normally, the lawsuit funding outfit wants to see if there are other potential lien holders which would be in a priority position on the case.  Examples might include Federal Tax Liens or Child Support Obligations.

In some instances however, a background check can be used as part of the approval process.  For example, if a case is approved but the applicant's background check shows a history of fraud, underwriters would seriously consider this fact when deciding to offer a cash advance.  At worst, the applicant could be perpetrating a fraud.  At best, his past transgressions go to his credibility as a truthful witness in the case.

Most often, background checks simply show minor criminal offenses and/or civil judgments.  In the vast majority of circumstances, background checks do not disqualify a case from funding.  However, as stated above, the presence of Federal Tax Liens or Child Support Obligations can throw a wrench in the lawsuit funding process.

When theses situations arise, all hope is not lost as there may be steps to rectify the situation.  For example, simply because a tax lien or other priority judgment is listed on the background report, does not necessarily mean there is still a valid lien.  Frequently, obligations such as these are current or otherwise satisfied but not updated on the background check.  In other instances, a common name may yield many liens on a background search, but only after more investigation can the lien be verified or deemed an error.

As previously stated, lawsuit funding companies utilize many tools to more accurately asses the risks associated with advancing cash against the future proceeds of a pending lawsuit.  Although the credit scores of applicants are usually of no real importance, background checks do play a role in the underwriting process.

Thank you for your interest in the pre-settlement loan business.

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